EXHIBIT 4.3
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COMMUNITY CAPITAL BANCSHARES, INC.,
AS ISSUER
INDENTURE
DATED AS OF MARCH 26, 2003
U. S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURES
DUE 2033
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TABLE OF CONTENTS
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Page
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ARTICLE I. DEFINITIONS 130
Section 1.1. Definitions. 130
ARTICLE II. DEBENTURES 136
Section 2.1. Authentication and Dating. 136
Section 2.2. Form of Trustee's Certificate of Authentication. 136
Section 2.3. Form and Denomination of Debentures. 137
Section 2.4. Execution of Debentures. 137
Section 2.5. Exchange and Registration of Transfer of Debentures. 137
Section 2.6. Mutilated, Destroyed, Lost or Stolen Debentures. 139
Section 2.7. Temporary Debentures. 140
Section 2.8. Payment of Interest and Additional Interest. 140
Section 2.9. Cancellation of Debentures Paid, etc. 141
Section 2.10. Computation of Interest. 142
Section 2.11. Extension of Interest Payment Period. 143
Section 2.12. CUSIP Numbers. 144
ARTICLE III. PARTICULAR COVENANTS OF THE COMPANY 144
Section 3.1. Payment of Principal, Premium and Interest; Agreed Treatment of the Debentures. 144
Section 3.2. Offices for Notices and Payments, etc. 145
Section 3.3. Appointments to Fill Vacancies in Trustee's Office. 145
Section 3.4. Provision as to Paying Agent. 145
Section 3.5. Certificate to Trustee. 146
Section 3.6. Additional Sums. 146
Section 3.7. Compliance with Consolidation Provisions. 147
Section 3.8. Limitation on Dividends. 147
Section 3.9. Covenants as to the Trust. 147
Section 3.10. Additional Junior Indebtedness. 147
ARTICLE IV. SECURITYHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE 148
Section 4.1. Securityholders' Lists. 148
Section 4.2. Preservation and Disclosure of Lists. 148
ARTICLE V. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS UPON AN EVENT OF DEFAULT 149
Section 5.1. Events of Default. 149
Section 5.2. Payment of Debentures on Default; Suit Therefor. 150
Section 5.3. Application of Moneys Collected by Trustee. 152
Section 5.4. Proceedings by Securityholders. 152
Section 5.5. Proceedings by Trustee. 153
Section 5.6. Remedies Cumulative and Continuing; Delay or Omission Not a Waiver. 153
Section 5.7. Direction of Proceedings and Waiver of Defaults by Majority of Securityholders. 153
Section 5.8. Notice of Defaults. 154
Section 5.9. Undertaking to Pay Costs. 154
ARTICLE VI. CONCERNING THE TRUSTEE 154
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Section 6.1. Duties and Responsibilities of Trustee. 154
Section 6.2. Reliance on Documents, Opinions, etc. 155
Section 6.3. No Responsibility for Recitals, etc. 156
Section 6.4. Trustee, Authenticating Agent, Paying Agents, Transfer
Agents or Registrar May Own Debentures. 156
Section 6.5. Moneys to be Held in Trust. 156
Section 6.6. Compensation and Expenses of Trustee. 156
Section 6.7. Officers' Certificate as Evidence. 157
Section 6.8. Eligibility of Trustee. 157
Section 6.9. Resignation or Removal of Trustee 158
Section 6.10. Acceptance by Successor Trustee. 159
Section 6.11. Succession by Merger, etc. 159
Section 6.12. Authenticating Agents. 160
ARTICLE VII. CONCERNING THE SECURITYHOLDERS 161
Section 7.1. Action by Securityholders. 161
Section 7.2. Proof of Execution by Securityholders. 161
Section 7.3. Who Are Deemed Absolute Owners. 161
Section 7.4. Debentures Owned by Company Deemed Not Outstanding. 162
Section 7.5. Revocation of Consents; Future Holders Bound. 162
ARTICLE VIII. SECURITYHOLDERS' MEETINGS 162
Section 8.1. Purposes of Meetings. 162
Section 8.2. Call of Meetings by Trustee. 163
Section 8.3. Call of Meetings by Company or Securityholders. 163
Section 8.4. Qualifications for Voting. 163
Section 8.5. Regulations. 163
Section 8.6. Voting. 163
Section 8.7. Quorum; Actions. 164
ARTICLE IX. SUPPLEMENTAL INDENTURES 164
Section 9.1. Supplemental Indentures without Consent of Securityholders. 164
Section 9.2. Supplemental Indentures with Consent of Securityholders. 166
Section 9.3. Effect of Supplemental Indentures. 166
Section 9.4. Notation on Debentures. 167
Section 9.5. Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee. 167
ARTICLE X. REDEMPTION OF SECURITIES 167
Section 10.1. Optional Redemption. 167
Section 10.2. Special Event Redemption. 167
Section 10.3. Notice of Redemption; Selection of Debentures. 167
Section 10.4. Payment of Debentures Called for Redemption. 168
ARTICLE XI. CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE 168
Section 11.1. Company May Consolidate, etc., on Certain Terms. 168
Section 11.2. Successor Entity to be Substituted. 169
Section 11.3. Opinion of Counsel to be Given to Trustee. 169
ARTICLE XII. SATISFACTION AND DISCHARGE OF INDENTURE 169
Section 12.1. Discharge of Indenture. 169
Section 12.2. Deposited Moneys to be Held in Trust by Trustee. 170
Section 12.3. Paying Agent to Repay Moneys Held. 170
Section 12.4. Return of Unclaimed Moneys. 170
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ARTICLE XIII. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS 170
Section 13.1. Indenture and Debentures Solely Corporate Obligations. 170
ARTICLE XIV. MISCELLANEOUS PROVISIONS 171
Section 14.1. Successors . 171
Section 14.2. Official Acts by Successor Entity . 171
Section 14.3. Surrender of Company Powers. 171
Section 14.4. Addresses for Notices, etc. 171
Section 14.5. Governing Law. 171
Section 14.6. Evidence of Compliance with Conditions Precedent. 171
Section 14.7. Non-Business Days. 172
Section 14.8. Table of Contents, Headings, etc. 172
Section 14.9. Execution in Counterparts. 172
Section 14.10.Separability. 172
Section 14.11.Assignment. 172
Section 14.12.Acknowledgment of Rights. 172
ARTICLE XV. SUBORDINATION OF DEBENTURES 173
Section 15.1. Agreement to Subordinate. 173
Section 15.2. Default on Senior Indebtedness. 173
Section 15.3. Liquidation, Dissolution, Bankruptcy. 173
Section 15.4. Subrogation. 174
Section 15.5. Trustee to Effectuate Subordination. 175
Section 15.6. Notice by the Company. 175
Section 15.7. Rights of the Trustee; Holders of Senior Indebtedness. 176
Section 15.8. Subordination May Not Be Impaired. 176
Exhibit A Form of Floating Rate Junior Subordinated Deferrable Interest Debenture
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THIS INDENTURE, dated as of March 26, 2003, between Community Capital
Bancshares, Inc., a Georgia corporation (the "Company"), and U. S. Bank National
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Association, a national banking association organized under the laws of the
United States of America, as debenture trustee (the "Trustee").
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WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issuance of its Floating Rate Junior Subordinated Deferrable Interest
Debentures due 2033 (the "Debentures") under this Indenture to provide, among
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other things, for the execution and authentication, delivery and administration
thereof, and the Company has duly authorized the execution of this Indenture;
and
WHEREAS, all acts and things necessary to make this Indenture a valid
agreement according to its terms, have been done and performed;
NOW, THEREFORE, This Indenture Witnesseth:
In consideration of the premises, and the purchase of the Debentures by the
holders thereof, the Company covenants and agrees with the Trustee for the equal
and proportionate benefit of the respective holders from time to time of the
Debentures as follows:
DEFINITIONS
DEFINITIONS. The terms defined in this Section 1.1 (except as herein
otherwise expressly provided or unless the context otherwise requires) for all
purposes of this Indenture and of any indenture supplemental hereto shall have
the respective meanings specified in this Section 1.1. All accounting terms
used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles and the term
"generally accepted accounting principles" means such accounting principles as
are generally accepted in the United States at the time of any computation. The
words "herein," "hereof" and "hereunder" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
subdivision.
"Additional Interest" has the meaning set forth in Section 2.11.
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"Additional Junior Indebtedness" means, without duplication and other than
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the Debentures, any indebtedness, liabilities or obligations of the Company, or
any Subsidiary of the Company, under debt securities (or guarantees in respect
of debt securities) initially issued after the date of this Indenture to any
trust, or a trustee of a trust, partnership or other entity affiliated with the
Company that is, directly or indirectly, a finance subsidiary (as such term is
defined in Rule 3a-5 under the Investment Company Act of 1940) or other
financing vehicle of the Company or any Subsidiary of the Company in connection
with the issuance by that entity of preferred securities or other securities
that are eligible to qualify for Tier 1 capital treatment (or its then
equivalent) for purposes of the capital adequacy guidelines of the Federal
Reserve, as then in effect and applicable to the Company (or, if the Company is
not a bank holding company, such guidelines applied to the Company as if the
Company were subject to such guidelines); provided, however, that the inability
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of the Company to treat all or any portion of the Additional Junior Indebtedness
as Tier 1 capital shall not disqualify it as Additional Junior Indebtedness if
such inability results from the Company having cumulative preferred stock,
minority interests in consolidated subsidiaries, or any other class of security
or interest which the Federal Reserve now or may hereafter accord Tier 1 capital
treatment (including the Debentures) in excess of the amount which may qualify
for treatment as Tier 1 capital under applicable capital adequacy guidelines.
" Additional Sums" has the meaning set forth in Section 3.6.
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"Affiliate" has the same meaning as given to that term in Rule 405 of the
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Securities Act or any successor rule thereunder.
"Authenticating Agent" means any agent or agents of the Trustee which at
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the time shall be appointed and acting pursuant to Section 6.12.
"Bankruptcy Law" means Title 11, U.S. Code, or any similar federal or state
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law for the relief of debtors.
"Board of Directors" means the board of directors or the executive
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committee or any other duly authorized designated officers of the Company.
"Board Resolution" means a copy of a resolution certified by the Secretary
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or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day" means any day other than a Saturday, Sunday or any other day
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on which banking institutions in New York City or Hartford, Connecticut are
permitted or required by any applicable law to close.
"Capital Securities" means undivided beneficial interests in the assets of
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the Trust which rank pari passu with Common Securities issued by the Trust;
provided, however, that upon the occurrence and continuance of an Event of
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Default (as defined in the Declaration), the rights of holders of such Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights of holders of such
Capital Securities.
"Capital Securities Guarantee" means the guarantee agreement that the
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Company enters into with U. S. Bank National Association, as guarantee trustee,
or other Persons that operates directly or indirectly for the benefit of holders
of Capital Securities of the Trust.
"Capital Treatment Event" means the receipt by the Company and the Trust of
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an opinion of counsel experienced in such matters to the effect that, as a
result of the occurrence of any amendment to, or change (including any announced
prospective change) in, the laws, rules or regulations of the United States or
any political subdivision thereof or therein, or as the result of any official
or administrative pronouncement or action or decision interpreting or applying
such laws, rules or regulations, which amendment or change is effective or which
pronouncement, action or decision is announced on or after the date of original
issuance of the Debentures, there is more than an insubstantial risk that the
Company will not, within 90 days of the date of such opinion, be entitled to
treat an amount equal to the aggregate liquidation amount of the Capital
Securities as "Tier 1 Capital" (or its then equivalent) for purposes of the
capital adequacy guidelines of the Federal Reserve, as then in effect and
applicable to the Company (or if the Company is not a bank holding company, such
guidelines applied to the Company as if the Company were subject to such
guidelines); provided, however, that the inability of the Company to treat all
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or any portion of the liquidation amount of the Capital Securities as Tier l
Capital shall not constitute the basis for a Capital Treatment Event, if such
inability results from the Company having cumulative preferred stock, minority
interests in consolidated subsidiaries, or any other class of security or
interest which the Federal Reserve or OTS, as applicable, may now or hereafter
accord Tier 1 Capital treatment in excess of the amount which may now or
hereafter qualify for treatment as Tier 1 Capital under applicable capital
adequacy guidelines; provided further, however, that the distribution of
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Debentures in connection with the liquidation of the Trust shall not in and of
itself constitute a Capital Treatment Event unless such liquidation shall have
occurred in connection with a Tax Event or an Investment Company Event.
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"Certificate" means a certificate signed by any one of the principal
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executive officer, the principal financial officer or the principal accounting
officer of the Company.
"Common Securities" means undivided beneficial interests in the assets of
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the Trust which rank pari passu with Capital Securities issued by the Trust;
provided, however, that upon the occurrence and continuance of an Event of
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Default (as defined in the Declaration), the rights of holders of such Common
Securities to payment in respect of distributions and payments upon liquidation,
redemption and otherwise are subordinated to the rights of holders of such
Capital Securities.
"Company" means Community Capital Bancshares, Inc., a Georgia corporation,
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and, subject to the provisions of Article XI, shall include its successors and
assigns.
"Coupon Rate" has the meaning set forth in Section 2.8.
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"Debenture" or "Debentures" has the meaning stated in the first recital of
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this Indenture.
"Debenture Register" has the meaning specified in Section 2.5.
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"Declaration" means the Amended and Restated Declaration of Trust of the
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Trust, as amended or supplemented from time to time.
"Default" means any event, act or condition that with notice or lapse of
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time, or both, would constitute an Event of Default.
"Defaulted Interest" has the meaning set forth in Section 2.8.
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"Distribution Period" has the meaning set forth in Section 2.8.
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"Determination Date" has the meaning set forth in Section 2.10.
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"Event of Default" means any event specified in Section 5.1, continued for
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the period of time, if any, and after the giving of the notice, if any, therein
designated.
"Extension Period" has the meaning set forth in Section 2.11.
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"Federal Reserve" means the Board of Governors of the Federal Reserve
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System and any successor federal agency that is primarily responsible for
regulating the activities of bank holding companies.
"Indenture" means this instrument as originally executed or, if amended or
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supplemented as herein provided, as so amended or supplemented, or both.
"Institutional Trustee" has the meaning set forth in the Declaration.
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"Interest Payment Date" means each March 26, June 26, September 26 and
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December 26 during the term of this Indenture.
"Interest Rate" means for the period beginning on (and including) the date
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of original issuance and ending on (but excluding) June 26, 2003 the rate per
annum of 4.41063% and for each Distribution Period thereafter, the Coupon Rate.
"Investment Company Event" means the receipt by the Company and the Trust
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of an opinion of counsel experienced in such matters to the effect that, as a
result of the occurrence of a change in law or
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regulation or written change (including any announced prospective change) in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Trust is or, within 90 days of the date of such
opinion will be considered an "investment company" that is required to be
registered under the Investment Company Act of 1940, as amended which change or
prospective change becomes effective or would become effective, as the case may
be, on or after the date of the issuance of the Debentures.
"Liquidation Amount" means the stated amount of $1,000.00 per Trust
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Security.
"Maturity Date" means March 26, 2033.
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"Officers' Certificate" means a certificate signed by the Chairman of the
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Board, the Chief Executive Officer, the Vice Chairman, the President, any
Managing Director or any Vice President, and by the Treasurer, an Assistant
Treasurer, the Comptroller, an Assistant Comptroller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 14.6 if and to
the extent required by the provisions of such Section.
"Opinion of Counsel" means an opinion in writing signed by legal counsel,
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who may be an employee of or counsel to the Company, or may be other counsel
reasonably satisfactory to the Trustee. Each such opinion shall include the
statements provided for in Section 14.6 if and to the extent required by the
provisions of such Section.
"OTS" means the Office of Thrift Supervision and any successor federal
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agency that is primarily responsible for regulating the activities of savings
and loan holding companies.
The term "outstanding," when used with reference to Debentures, means,
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subject to the provisions of Section 7.4, as of any particular time, all
Debentures authenticated and delivered by the Trustee or the Authenticating
Agent under this Indenture, except:
(a) Debentures theretofore canceled by the Trustee or the
Authenticating Agent or delivered to the Trustee for cancellation;
(b) Debentures, or portions thereof, for the payment or redemption of
which moneys in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own paying agent); provided, however, that, if such Debentures, or portions
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thereof, are to be redeemed prior to maturity thereof, notice of such redemption
shall have been given as provided in Section 10.3 or provision satisfactory to
the Trustee shall have been made for giving such notice; and
(c) Debentures paid pursuant to Section 2.6 or in lieu of or in
substitution for which other Debentures shall have been authenticated and
delivered pursuant to the terms of Section 2.6 unless proof satisfactory to the
Company and the Trustee is presented that any such Debentures are held by bona
fide holders in due course.
"Person" means any individual, corporation, limited liability company,
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partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Security" of any particular Debenture means every previous
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Debenture evidencing all or a portion of the same debt as that evidenced by such
particular Debenture; and, for purposes of this definition, any Debenture
authenticated and delivered under Section 2.6 in lieu of a lost, destroyed or
stolen Debenture shall be deemed to evidence the same debt as the lost,
destroyed or stolen Debenture.
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"Principal Office of the Trustee," or other similar term, means the office
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of the Trustee, at which at any particular time its corporate trust business
shall be principally administered, which at the time of the execution of this
Indenture shall be ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
"Redemption Date" has the meaning set forth in Section 10.1.
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"Redemption Price" means 100% of the principal amount of the Debentures
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being redeemed, plus accrued and unpaid interest (including any Additional
Interest) on such Debentures to the Redemption Date.
"Responsible Officer" means, with respect to the Trustee, any officer
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within the Principal Office of the Trustee, including any vice-president, any
assistant vice-president, any secretary, any assistant secretary, the treasurer,
any assistant treasurer, any trust officer or other officer of the Principal
Trust Office of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of that officer's knowledge of and familiarity with the
particular subject.
"Securities Act" means the Securities Act of 1933, as amended from time to
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time or any successor legislation.
"Securityholder," "holder of Debentures," or other similar terms, means any
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Person in whose name at the time a particular Debenture is registered on the
register kept by the Company or the Trustee for that purpose in accordance with
the terms hereof.
"Senior Indebtedness" means, with respect to the Company, (i) the
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principal, premium, if any, and interest in respect of (A) indebtedness of the
Company for money borrowed and (B) indebtedness evidenced by securities,
debentures, notes, bonds or other similar instruments issued by the Company;
(ii) all capital lease obligations of the Company; (iii) all obligations of the
Company issued or assumed as the deferred purchase price of property, all
conditional sale obligations of the Company and all obligations of the Company
under any title retention agreement; (iv) all obligations of the Company for the
reimbursement of any letter of credit, any banker's acceptance, any security
purchase facility, any repurchase agreement or similar arrangement, any interest
rate swap, any other hedging arrangement, any obligation under options or any
similar credit or other transaction; (v) all obligations of the type referred to
in clauses (i) through (iv) above of other Persons for the payment of which the
Company is responsible or liable as obligor, guarantor or otherwise; and (vi)
all obligations of the type referred to in clauses (i) through (v) above of
other Persons secured by any lien on any property or asset of the Company
(whether or not such obligation is assumed by the Company), whether incurred on
or prior to the date of this Indenture or thereafter incurred. Notwithstanding
the foregoing, "Senior Indebtedness" shall not include (1) any Additional Junior
Indebtedness, (2) Debentures issued pursuant to this Indenture and guarantees in
respect of such Debentures, (3) trade accounts payable of the Company arising in
the ordinary course of business (such trade accounts payable being pari passu in
right of payment to the Debentures), or (4) obligations with respect to which
(a) in the instrument creating or evidencing the same or pursuant to which the
same is outstanding, it is provided that such obligations are pari passu, junior
or otherwise not superior in right of payment to the Debentures and (b) the
Company, prior to the issuance thereof, has notified (and, if then required
under the applicable guidelines of the regulating entity, has received approval
from) the Federal Reserve (if the Company is a bank holding company) or the OTS
(if the Company is a savings and loan holding company). Senior Indebtedness
shall continue to be Senior Indebtedness and be entitled to the subordination
provisions irrespective of any amendment, modification or waiver of any term of
such Senior Indebtedness.
"Special Event" means any of a Capital Treatment Event, an Investment
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Company Event or a Tax Event
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"Special Redemption Date" has the meaning set forth in 0.
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"Special Redemption Price" means (i) 107.5% of the principal amount of the
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Debentures being redeemed on a Special Redemption Date that occurs before March
26, 2008 and (ii) 100% of the principal amount of the Debentures being redeemed
on a Special Redemption Date that occurs on March 26, 2008 or after, plus, in
each case, accrued and unpaid interest (including any Additional Interest) on
such Debentures to the Special Redemption Date.
"Subsidiary" means with respect to any Person, (i) any corporation at least
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a majority of the outstanding voting stock of which is owned, directly or
indirectly, by such Person or by one or more of its Subsidiaries, or by such
Person and one or more of its Subsidiaries, (ii) any general partnership, joint
venture or similar entity, at least a majority of the outstanding partnership or
similar interests of which shall at the time be owned by such Person, or by one
or more of its Subsidiaries, or by such Person and one or more of its
Subsidiaries and (iii) any limited partnership of which such Person or any of
its Subsidiaries is a general partner. For the purposes of this definition,
"voting stock" means shares, interests, participations or other equivalents in
the equity interest (however designated) in such Person having ordinary voting
power for the election of a majority of the directors (or the equivalent) of
such Person, other than shares, interests, participations or other equivalents
having such power only by reason of the occurrence of a contingency.
"Tax Event" means the receipt by the Company and the Trust of an opinion of
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counsel experienced in such matters to the effect that, as a result of any
amendment to or change (including any announced prospective change) in the laws
or any regulations thereunder of the United States or any political subdivision
or taxing authority thereof or therein, or as a result of any official
administrative pronouncement (including any private letter ruling, technical
advice memorandum, field service advice, regulatory procedure, notice or
announcement, including any notice or announcement of intent to adopt such
procedures or regulations) (an "Administrative Action") or judicial decision
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interpreting or applying such laws or regulations, regardless of whether such
Administrative Action or judicial decision is issued to or in connection with a
proceeding involving the Company or the Trust and whether or not subject to
review or appeal, which amendment, clarification, change, Administrative Action
or decision is enacted, promulgated or announced, in each case on or after the
date of original issuance of the Debentures, there is more than an insubstantial
risk that: (i) the Trust is, or will be within 90 days of the date of such
opinion, subject to United States federal income tax with respect to income
received or accrued on the Debentures; (ii) interest payable by the Company on
the Debentures is not, or within 90 days of the date of such opinion, will not
be, deductible by the Company, in whole or in part, for United States federal
income tax purposes; or (iii) the Trust is, or will be within 90 days of the
date of such opinion, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.
"3-Month LIBOR" has the meaning set forth in Section 2.10.
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"Telerate Page 3750" has the meaning set forth in Section 2.10.
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"Trust" shall mean Community Capital Statutory Trust I, a Connecticut
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statutory trust, or any other similar trust created for the purpose of issuing
Capital Securities in connection with the issuance of Debentures under this
Indenture, of which the Company is the sponsor.
"Trust Securities" means Common Securities and Capital Securities of the
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Trust.
"Trustee" means U. S. Bank National Association, and, subject to the
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provisions of Article VI hereof, shall also include its successors and assigns
as Trustee hereunder.
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DEBENTURES
AUTHENTICATION AND DATING. Upon the execution and delivery of this
Indenture, or from time to time thereafter, Debentures in an aggregate principal
amount not in excess of $4,124,000.00 may be executed and delivered by the
Company to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery said Debentures to or upon the
written order of the Company, signed by its Chairman of the Board of Directors,
Chief Executive Officer, Vice Chairman, the President, one of its Managing
Directors or one of its Vice Presidents without any further action by the
Company hereunder. In authenticating such Debentures, and accepting the
additional responsibilities under this Indenture in relation to such Debentures,
the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be
fully protected in relying upon:
a copy of any Board Resolution or Board Resolutions relating thereto and,
if applicable, an appropriate record of any action taken pursuant to such
resolution, in each case certified by the Secretary or an Assistant Secretary of
the Company, as the case may be; and
an Opinion of Counsel prepared in accordance with Section 14.6 which
shall also state:
that such Debentures, when authenticated and delivered by the
Trustee and issued by the Company in each case in the manner and
subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company,
subject to or limited by applicable bankruptcy, insolvency,
reorganization, conservatorship, receivership, moratorium and other
statutory or decisional laws relating to or affecting creditors'
rights or the reorganization of financial institutions (including,
without limitation, preference and fraudulent conveyance or transfer
laws), heretofore or hereafter enacted or in effect, affecting the
rights of creditors generally; and
that all laws and requirements in respect of the execution and
delivery by the Company of the Debentures have been complied with and
that authentication and delivery of the Debentures by the Trustee will
not violate the terms of this Indenture.
The Trustee shall have the right to decline to authenticate and deliver any
Debentures under this Section if the Trustee, being advised in writing by
counsel, determines that such action may not lawfully be taken or if a
Responsible Officer of the Trustee in good faith shall determine that such
action would expose the Trustee to personal liability to existing holders.
The definitive Debentures shall be typed, printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Debentures, as evidenced by their
execution of such Debentures.
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. The Trustee's
certificate of authentication on all Debentures shall be in substantially the
following form:
This is one of the Debentures referred to in the within-mentioned
Indenture.
U. S. Bank National Association, as Trustee
By_______________________________________________
Authorized Signer
7
FORM AND DENOMINATION OF DEBENTURES. The Debentures shall be
substantially in the form of Exhibit A attached hereto. The Debentures shall be
in registered, certificated form without coupons and in minimum denominations of
$100,000.00 and any multiple of $1,000.00 in excess thereof. Any attempted
transfer of the Debentures in a block having an aggregate principal amount of
less than $100,000.00 shall be deemed to be void and of no legal effect
whatsoever. Any such purported transferee shall be deemed not to be a holder of
such Debentures for any purpose, including, but not limited to the receipt of
payments on such Debentures, and such purported transferee shall be deemed to
have no interest whatsoever in such Debentures. The Debentures shall be
numbered, lettered, or otherwise distinguished in such manner or in accordance
with such plans as the officers executing the same may determine with the
approval of the Trustee as evidenced by the execution and authentication
thereof.
EXECUTION OF DEBENTURES. The Debentures shall be signed in the name and
on behalf of the Company by the manual or facsimile signature of its Chairman of
the Board of Directors, Chief Executive Officer, Vice Chairman, President, one
of its Managing Directors or one of its Executive Vice Presidents, Senior Vice
Presidents or Vice Presidents. Only such Debentures as shall bear thereon a
certificate of authentication substantially in the form herein before recited,
executed by the Trustee or the Authenticating Agent by the manual signature of
an authorized signer, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee or the
Authenticating Agent upon any Debenture executed by the Company shall be
conclusive evidence that the Debenture so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
In case any officer of the Company who shall have signed any of the
Debentures shall cease to be such officer before the Debentures so signed shall
have been authenticated and delivered by the Trustee or the Authenticating
Agent, or disposed of by the Company, such Debentures nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Debentures had not ceased to be such officer of the Company; and any Debenture
may be signed on behalf of the Company by such Persons as, at the actual date of
the execution of such Debenture, shall be the proper officers of the Company,
although at the date of the execution of this Indenture any such person was not
such an officer.
Every Debenture shall be dated the date of its authentication.
EXCHANGE AND REGISTRATION OF TRANSFER OF DEBENTURES. The Company shall
cause to be kept, at the office or agency maintained for the purpose of
registration of transfer and for exchange as provided in Section 3.2, a register
(the "Debenture Register") for the Debentures issued hereunder in which, subject
------------------
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration and transfer of all Debentures as in this Article II
provided. The Debenture Register shall be in written form or in any other form
capable of being converted into written form within a reasonable time.
Debentures to be exchanged may be surrendered at the Principal Office of
the Trustee or at any office or agency to be maintained by the Company for such
purpose as provided in Section 3.2, and the Company shall execute, the Company
or the Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in exchange therefor the Debenture
or Debentures which the Securityholder making the exchange shall be entitled to
receive. Upon due presentment for registration of transfer of any Debenture at
the Principal Office of the Trustee or at any office or agency of the Company
maintained for such purpose as provided in Section 3.2, the Company shall
execute, the Company or the Trustee shall register and the Trustee or the
Authenticating Agent shall authenticate and make available for delivery in the
name of the transferee or transferees a new Debenture for a like aggregate
principal amount. Registration or registration of transfer of any Debenture by
the Trustee or by any agent of the Company
8
appointed pursuant to Section 3.2, and delivery of such Debenture, shall be
deemed to complete the registration or registration of transfer of such
Debenture.
All Debentures presented for registration of transfer or for exchange or
payment shall (if so required by the Company or the Trustee or the
Authenticating Agent) be duly endorsed by, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company and
the Trustee or the Authenticating Agent duly executed by the holder or his
attorney duly authorized in writing.
No service charge shall be made for any exchange or registration of
transfer of Debentures, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection therewith.
The Company or the Trustee shall not be required to exchange or register a
transfer of any Debenture for a period of 15 days next preceding the date of
selection of Debentures for redemption.
Notwithstanding anything herein to the contrary, Debentures may not be
transferred except in compliance with the restricted securities legend set forth
below, unless otherwise determined by the Company, upon the advice of counsel
expert in securities law, in accordance with applicable law:
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY
THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE
FEDERAL DEPOSIT INSURANCE CORPORATION.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE
WITH RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN
ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY.
9
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES,
REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH
A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON
OF ANY PLAN'S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING "PLAN ASSETS" OF
ANY PLAN MAY ACQUIRE OR HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF
THIS SECURITY IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR HOLDER OF THE
SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS
PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN
WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO WHICH SECTION 4975 OF
THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF AN
EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE ASSETS OF
ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION 406 OF ERISA
OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE STATUTORY OR
ADMINISTRATIVE EXEMPTION.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF
$1,000.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK
HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED TO
BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
MUTILATED, DESTROYED, LOST OR STOLEN DEBENTURES. In case any Debenture
shall become mutilated or be destroyed, lost or stolen, the Company shall
execute, and upon its written request the Trustee shall authenticate and
deliver, a new Debenture bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Debenture, or in lieu of and in
substitution for the Debenture so destroyed, lost or stolen. In every case the
applicant for a substituted Debenture shall furnish to the Company and the
Trustee such security or indemnity as may be required by them to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Company and the Trustee evidence to their satisfaction
of the destruction, loss or theft of such Debenture and of the ownership
thereof.
The Trustee may authenticate any such substituted Debenture and deliver the
same upon the written request or authorization of any officer of the Company.
Upon the issuance of any substituted Debenture, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses connected therewith.
In case any Debenture which has matured or is about to mature or has been called
for redemption in full shall become mutilated or be destroyed, lost or stolen,
the Company may, instead of issuing a substitute Debenture, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Debenture) if the applicant for such payment shall furnish to the Company and
the Trustee such security or indemnity as may be required by them to save each
10
of them harmless and, in case of destruction, loss or theft, evidence
satisfactory to the Company and to the Trustee of the destruction, loss or theft
of such Debenture and of the ownership thereof.
Every substituted Debenture issued pursuant to the provisions of this
Section 2.6 by virtue of the fact that any such Debenture is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Debenture shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debentures duly issued hereunder. All
Debentures shall be held and owned upon the express condition that, to the
extent permitted by applicable law, the foregoing provisions are exclusive with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Debentures and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary
with respect to the replacement or payment of negotiable instruments or other
securities without their surrender.
TEMPORARY DEBENTURES. Pending the preparation of definitive Debentures,
the Company may execute and the Trustee shall authenticate and make available
for delivery temporary Debentures that are typed, printed or lithographed.
Temporary Debentures shall be issuable in any authorized denomination, and
substantially in the form of the definitive Debentures in lieu of which they are
issued but with such omissions, insertions and variations as may be appropriate
for temporary Debentures, all as may be determined by the Company. Every such
temporary Debenture shall be executed by the Company and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
the same effect, as the definitive Debentures. Without unreasonable delay the
Company will execute and deliver to the Trustee or the Authenticating Agent
definitive Debentures and thereupon any or all temporary Debentures may be
surrendered in exchange therefor, at the principal corporate trust office of the
Trustee or at any office or agency maintained by the Company for such purpose as
provided in Section 3.2, and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in exchange for such temporary
Debentures a like aggregate principal amount of such definitive Debentures.
Such exchange shall be made by the Company at its own expense and without any
charge therefor except that in case of any such exchange involving a
registration of transfer the Company may require payment of a sum sufficient to
cover any tax, fee or other governmental charge that may be imposed in relation
thereto. Until so exchanged, the temporary Debentures shall in all respects be
entitled to the same benefits under this Indenture as definitive Debentures
authenticated and delivered hereunder.
PAYMENT OF INTEREST AND ADDITIONAL INTEREST. Interest at the Interest
Rate and any Additional Interest on any Debenture that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date for
Debentures shall be paid to the Person in whose name said Debenture (or one or
more Predecessor Securities) is registered at the close of business on the
regular record date for such interest installment except that interest and any
Additional Interest payable on the Maturity Date shall be paid to the Person to
whom principal is paid.
Each Debenture shall bear interest for the period beginning on (and
including) the date of original issuance and ending on (but excluding) June 26,
2003 at a rate per annum of 4.41063%, and shall bear interest for each
successive period beginning on (and including) June 26, 2003, and each
succeeding Interest Payment Date, and ending on (but excluding) the next
succeeding Interest Payment Date (each, a "Distribution Period") at a rate per
-------------------
annum equal to the 3-Month LIBOR, determined as described in Section 2.10, plus
3.15% (the "Coupon Rate"); provided, however, that prior to March 26, 2008, the
----------- -------- -------
Coupon Rate shall not exceed 11.75%, applied to the principal amount thereof,
until the principal thereof becomes due and payable, and on any overdue
principal and to the extent that payment of such interest is enforceable under
applicable law (without duplication) on any overdue installment of interest
(including Additional Interest) at the Interest Rate in effect for each
applicable period compounded quarterly. Interest shall be payable (subject to
any relevant Extension
11
Period) quarterly in arrears on each Interest Payment Date with the first
installment of interest to be paid on June 26, 2003.
Any interest on any Debenture, including Additional Interest, that is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
------------------
payable to the registered holder on the relevant regular record date by virtue
of having been such holder; and such Defaulted Interest shall be paid by the
Company to the Persons in whose names such Debentures (or their respective
Predecessor Securities) are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be fixed in
the following manner: the Company shall notify the Trustee in writing at least
25 days prior to the date of the proposed payment of the amount of Defaulted
Interest proposed to be paid on each such Debenture and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix
a special record date for the payment of such Defaulted Interest which shall not
be more than 15 nor less than 10 days prior to the date of the proposed payment
and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such special
record date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first class postage prepaid, to each Securityholder
at its address as it appears in the Debenture Register, not less than 10 days
prior to such special record date. Notice of the proposed payment of such
Defaulted Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose names
such Debentures (or their respective Predecessor Securities) are registered on
such special record date and shall be no longer payable.
The Company may make payment of any Defaulted Interest on any Debentures in
any other lawful manner after notice given by the Company to the Trustee of the
proposed payment method; provided, however, the Trustee in its sole discretion
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deems such payment method to be practical.
Any interest (including Additional Interest) scheduled to become payable on
an Interest Payment Date occurring during an Extension Period shall not be
Defaulted Interest and shall be payable on such other date as may be specified
in the terms of such Debentures.
The term "regular record date" as used in this Section shall mean the close
of business on the 15th calendar day next preceding the applicable Interest
Payment Date.
Subject to the foregoing provisions of this Section, each Debenture
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Debenture shall carry the rights to interest accrued
and unpaid, and to accrue, that were carried by such other Debenture.
CANCELLATION OF DEBENTURES PAID, ETC. All Debentures surrendered for
the purpose of payment, redemption, exchange or registration of transfer, shall,
if surrendered to the Company or any paying agent, be surrendered to the Trustee
and promptly canceled by it, or, if surrendered to the Trustee or any
Authenticating Agent, shall be promptly canceled by it, and no Debentures shall
be issued in lieu thereof except as expressly permitted by any of the provisions
of this Indenture. All Debentures canceled by any Authenticating Agent shall be
delivered to the Trustee. The Trustee shall destroy all canceled Debentures
unless the Company otherwise directs the Trustee in writing. If the Company
shall acquire any of the Debentures, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented by such
Debentures unless and until the same are surrendered to the Trustee for
cancellation.
COMPUTATION OF INTEREST. The amount of interest payable for the
Distribution Period commencing on June 26, 2003 and each succeeding Distribution
Period will be calculated by applying the Interest Rate to the principal amount
outstanding at the commencement of the Distribution Period and multiplying each
such amount by the actual number of days in the Distribution Period concerned
divided by 360. In the event that any date on which interest is payable on the
Debentures is not a Business Day, then payment of interest payable on such date
shall be made on the next succeeding day which is a Business Day (and without
any interest or other payment in respect of any such delay), except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on the date such payment was originally payable. All
percentages resulting from any calculations on the Debentures will be rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point rounded upward (e.g., 9.876545% (or
..09876545) being rounded to 9.87655% (or .0987655), and all dollar amounts used
in or resulting from such calculation will be rounded to the nearest cent (with
one-half cent being rounded upward)).
"3-MONTH LIBOR" MEANS THE LONDON INTERBANK OFFERED INTEREST RATE FOR
---------------------------------------------------------------------------
THREE-MONTH, U.S. DOLLAR DEPOSITS DETERMINED BY THE TRUSTEE IN THE FOLLOWING
--------------------------------------------------------------------------------
ORDER OF PRIORITY:
--------------------
(1) the rate (expressed as a percentage per annum) for U.S. dollar
deposits having a three-month maturity that appears on Telerate Page 3750
as of 11:00 a.m. (London time) on the related Determination Date (as
defined below). "Telerate Page 3750" means the display designated as "Page
3750" on the Dow ▇▇▇▇▇ Telerate Service or such other page as may replace
Page 3750 on that service or such other service or services as may be
nominated by the British Bankers' Association as the information vendor for
the purpose of displaying London interbank offered rates for U.S. dollar
deposits;
(2) if such rate cannot be identified on the related Determination
Date, the Trustee will request the principal London offices of four leading
banks in the London interbank market to provide such banks' offered
quotations (expressed as percentages per annum) to prime banks in the
London interbank market for U.S. dollar deposits having a three-month
maturity as of 11:00 a.m. (London time) on such Determination Date. If at
least two quotations are provided, 3-Month LIBOR will be the arithmetic
mean of such quotations;
(3) if fewer than two such quotations are provided as requested in
clause (2) above, the Trustee will request four major New York City banks
to provide such banks' offered quotations (expressed as percentages per
annum) to leading European banks for loans in U.S. dollars as of 11:00 a.m.
(London time) on such Determination Date. If at least two such quotations
are provided, 3-Month LIBOR will be the arithmetic mean of such quotations;
and
(4) if fewer than two such quotations are provided as requested in
clause (3) above, 3-Month LIBOR will be a 3-Month LIBOR determined with
respect to the Distribution Period immediately preceding such current
Distribution Period.
If the rate for U.S. dollar deposits having a three-month maturity that
initially appears on Telerate Page 3750 as of 11:00 a.m. (London time) on the
related Determination Date is superseded on the Telerate Page 3750 by a
corrected rate by 12:00 noon (London time) on such Determination Date, then the
corrected rate as so substituted on the applicable page will be the applicable
3-Month LIBOR for such Determination Date.
(b) The Interest Rate for any Distribution Period will at no time be
higher than the maximum rate then permitted by New York law as the same may be
modified by United States law.
12
(c) "Determination Date" means the date that is two London
-------------------
Banking Days (i.e., a business day in which dealings in deposits in
U.S. dollars are transacted in the London interbank market) preceding
the particular Distribution Period for which a Coupon Rate is being
determined.
(d) The Trustee shall notify the Company, the Institutional
Trustee and any securities exchange or interdealer quotation system on
which the Capital Securities are listed, of the Coupon Rate and the
Determination Date for each Distribution Period, in each case as soon
as practicable after the determination thereof but in no event later
than the thirtieth (30th) day of the relevant Distribution Period.
Failure to notify the Company, the Institutional Trustee or any
securities exchange or interdealer quotation system, or any defect in
said notice, shall not affect the obligation of the Company to make
payment on the Debentures at the applicable Coupon Rate. Any error in
the calculation of the Coupon Rate by the Trustee may be corrected at
any time by notice delivered as above provided. Upon the request of a
holder of a Debenture, the Trustee shall provide the Coupon Rate then
in effect and, if determined, the Coupon Rate for the next
Distribution Period.
(e) Subject to the corrective rights set forth above, all
certificates, communications, opinions, determinations, calculations,
quotations and decisions given, expressed, made or obtained for the
purposes of the provisions relating to the payment and calculation of
interest on the Debentures and distributions on the Capital Securities
by the Trustee or the Institutional Trustee will (in the absence of
willful default, bad faith and manifest error) be final, conclusive
and binding on the Trust, the Company and all of the holders of the
Debentures and the Capital Securities, and no liability shall (in the
absence of willful default, bad faith or manifest error) attach to the
Trustee or the Institutional Trustee in connection with the exercise
or non-exercise by either of them or their respective powers, duties
and discretion.
EXTENSION OF INTEREST PAYMENT PERIOD. So long as no Event of Default
has occurred and is continuing, the Company shall have the right, from time to
time, and without causing an Event of Default, to defer payments of interest on
the Debentures by extending the interest payment period on the Debentures at any
time and from time to time during the term of the Debentures, for up to 20
consecutive quarterly periods (each such extended interest payment period, an
"Extension Period"), during which Extension Period no interest (including
-----------------
Additional Interest) shall be due and payable (except any Additional Sums that
may be due and payable). No Extension Period may end on a date other than an
Interest Payment Date. During an Extension Period, interest will continue to
accrue on the Debentures, and interest on such accrued interest will accrue at
an annual rate equal to the Interest Rate in effect for such Extension Period,
compounded quarterly from the date such interest would have been payable were it
not for the Extension Period, to the extent permitted by law (such interest
referred to herein as "Additional Interest"). At the end of any such Extension
-------------------
Period the Company shall pay all interest then accrued and unpaid on the
Debentures (together with Additional Interest thereon); provided, however, that
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no Extension Period may extend beyond the Maturity Date; provided further,
-------- -------
however, that during any such Extension Period, the Company shall not and shall
not permit any Affiliate to (i) declare or pay any dividends or distributions
on, or redeem, purchase, acquire, or make a liquidation payment with respect to,
any of the Company's or such Affiliate's capital stock (other than payments of
dividends or distributions to the Company) or make any guarantee payments with
respect to the foregoing or (ii) make any payment of principal of or interest or
premium, if any, on or repay, repurchase or redeem any debt securities of the
Company or any Affiliate that rank pari passu in all respects with or junior in
interest to the Debentures (other than, with respect to clauses (i) or (ii)
above, (a) repurchases, redemptions or other acquisitions of shares of capital
stock of the Company in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of one or more employees,
officers, directors or consultants, in connection with a dividend reinvestment
or stockholder stock purchase plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period, (b) as a result of any exchange or
conversion of any class or series of the
13
Company's capital stock (or any capital stock of a subsidiary of the Company)
for any class or series of the Company's capital stock or of any class or series
of the Company's indebtedness for any class or series of the Company's capital
stock, (c) the purchase of fractional interests in shares of the Company's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged, (d) any declaration of a
dividend in connection with any stockholders' rights plan, or the issuance of
rights, stock or other property under any stockholders' rights plan, or the
redemption or repurchase of rights pursuant thereto, (e) any dividend in the
form of stock, warrants, options or other rights where the dividend stock or the
stock issuable upon exercise of such warrants, options or other rights is the
same stock as that on which the dividend is being paid or ranks pari passu with
or junior to such stock and any cash payments in lieu of fractional shares
issued in connection therewith, or (f) payments under the Capital Securities
Guarantee). Prior to the termination of any Extension Period, the Company may
further extend such period, provided that such period together with all such
previous and further consecutive extensions thereof shall not exceed 20
consecutive quarterly periods, or extend beyond the Maturity Date. Upon the
termination of any Extension Period and upon the payment of all accrued and
unpaid interest and Additional Interest, the Company may commence a new
Extension Period, subject to the foregoing requirements. No interest or
Additional Interest shall be due and payable during an Extension Period, except
at the end thereof, but each installment of interest that would otherwise have
been due and payable during such Extension Period shall bear Additional Interest
to the extent permitted by applicable law. The Company must give the Trustee
notice of its election to begin or extend an Extension Period at least 5
Business Days prior to the regular record date (as such term is used in Section
2.8) immediately preceding the Interest Payment Date with respect to which
interest on the Debentures would have been payable except for the election to
begin or extend such Extension Period. The Trustee shall give notice of the
Company's election to begin a new Extension Period to the Securityholders.
CUSIP NUMBERS. The Company in issuing the Debentures may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use CUSIP
numbers in notices of redemption as a convenience to Securityholders; provided,
--------
however, that any such notice may state that no representation is made as to the
-------
correctness of such numbers either as printed on the Debentures or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debentures, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the CUSIP numbers.
PARTICULAR COVENANTS OF THE COMPANY
PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST; AGREED TREATMENT OF THE
DEBENTURES.
The Company covenants and agrees that it will duly and punctually pay or
cause to be paid the principal of and premium, if any, and interest and any
Additional Interest and other payments on the Debentures at the place, at the
respective times and in the manner provided in this Indenture and the
Debentures. Each installment of interest on the Debentures may be paid (i) by
mailing checks for such interest payable to the order of the holders of
Debentures entitled thereto as they appear on the registry books of the Company
if a request for a wire transfer has not been received by the Company or (ii) by
wire transfer to any account with a banking institution located in the United
States designated in writing by such Person to the paying agent no later than
the related record date. Notwithstanding the foregoing, so long as the holder of
this Debenture is the Institutional Trustee, the payment of the principal of and
interest on this Debenture will be made in immediately available funds at such
place and to such account as may be designated by the Institutional Trustee.
14
The Company will treat the Debentures as indebtedness, and the amounts
payable in respect of the principal amount of such Debentures as interest, for
all United States federal income tax purposes. All payments in respect of such
Debentures will be made free and clear of United States withholding tax to any
beneficial owner thereof that has provided an Internal Revenue Service Form W8
BEN (or any substitute or successor form) establishing its non-United States
status for United States federal income tax purposes.
As of the date of this Indenture, the Company has no present intention to
exercise its right under Section 2.11 to defer payments of interest on the
Debentures by commencing an Extension Period.
As of the date of this Indenture, the Company believes that the likelihood
that it would exercise its right under Section 2.11 to defer payments of
interest on the Debentures by commencing an Extension Period at any time during
which the Debentures are outstanding is remote because of the restrictions that
would be imposed on the Company's ability to declare or pay dividends or
distributions on, or to redeem, purchase or make a liquidation payment with
respect to, any of its outstanding equity and on the Company's ability to make
any payments of principal of or interest on, or repurchase or redeem, any of its
debt securities that rank pari passu in all respects with (or junior in interest
to) the Debentures.
OFFICES FOR NOTICES AND PAYMENTS, ETC. So long as any of the Debentures
remain outstanding, the Company will maintain in Hartford, Connecticut, an
office or agency where the Debentures may be presented for payment, an office or
agency where the Debentures may be presented for registration of transfer and
for exchange as in this Indenture provided and an office or agency where notices
and demands to or upon the Company in respect of the Debentures or of this
Indenture may be served. The Company will give to the Trustee written notice of
the location of any such office or agency and of any change of location thereof.
Until otherwise designated from time to time by the Company in a notice to the
Trustee, or specified as contemplated by 0, such office or agency for all of the
above purposes shall be the office or agency of the Trustee. In case the
Company shall fail to maintain any such office or agency in Hartford,
Connecticut, or shall fail to give such notice of the location or of any change
in the location thereof, presentations and demands may be made and notices may
be served at the Principal Office of the Trustee.
In addition to any such office or agency, the Company may from time to time
designate one or more offices or agencies outside Hartford, Connecticut, where
the Debentures may be presented for registration of transfer and for exchange in
the manner provided in this Indenture, and the Company may from time to time
rescind such designation, as the Company may deem desirable or expedient;
provided, however, that no such designation or rescission shall in any manner
-------- -------
relieve the Company of its obligation to maintain any such office or agency in
Hartford, Connecticut, for the purposes above mentioned. The Company will give
to the Trustee prompt written notice of any such designation or rescission
thereof.
APPOINTMENTS TO FILL VACANCIES IN TRUSTEE'S OFFICE. The Company,
whenever necessary to avoid or fill a vacancy in the office of Trustee, will
appoint, in the manner provided in Section 6.9, a Trustee, so that there shall
at all times be a Trustee hereunder.
PROVISION AS TO PAYING AGENT.
If the Company shall appoint a paying agent other than the Trustee, it will
cause such paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provision of this
Section 3.4,
that it will hold all sums held by it as such agent for the payment of
the principal of and premium, if any, or interest, if any, on the
Debentures (whether such sums have been paid to it by the Company or
by any other obligor on the Debentures) in trust for the benefit of
the holders of the Debentures;
15
that it will give the Trustee prompt written notice of any failure by
the Company (or by any other obligor on the Debentures) to make any
payment of the principal of and premium, if any, or interest, if any,
on the Debentures when the same shall be due and payable; and
that it will, at any time during the continuance of any Event of
Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of and premium, if any, or interest or other
payments, if any, on the Debentures, set aside, segregate and hold in trust for
the benefit of the holders of the Debentures a sum sufficient to pay such
principal, premium, interest or other payments so becoming due and will notify
the Trustee in writing of any failure to take such action and of any failure by
the Company (or by any other obligor under the Debentures) to make any payment
of the principal of and premium, if any, or interest or other payments, if any,
on the Debentures when the same shall become due and payable.
Whenever the Company shall have one or more paying agents for the
Debentures, it will, on or prior to each due date of the principal of and
premium, if any, or interest, if any, on the Debentures, deposit with a paying
agent a sum sufficient to pay the principal, premium, interest or other payments
so becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto and (unless such paying agent is the Trustee) the Company shall
promptly notify the Trustee in writing of its action or failure to act.
Anything in this Section 3.4 to the contrary notwithstanding, the Company
may, at any time, for the purpose of obtaining a satisfaction and discharge with
respect to the Debentures, or for any other reason, pay, or direct any paying
agent to pay to the Trustee all sums held in trust by the Company or any such
paying agent, such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section 3.4 to the contrary notwithstanding, the agreement
to hold sums in trust as provided in this Section 3.4 is subject to Sections
12.3 and 12.4.
CERTIFICATE TO TRUSTEE. The Company will deliver to the Trustee on or
before 120 days after the end of each fiscal year, so long as Debentures are
outstanding hereunder, a Certificate stating that in the course of the
performance by the signers of their duties as officers of the Company they would
normally have knowledge of any default during such fiscal year by the Company in
the performance of any covenants contained herein, stating whether or not they
have knowledge of any such default and, if so, specifying each such default of
which the signers have knowledge and the nature and status thereof.
ADDITIONAL SUMS. If and for so long as the Trust is the holder of all
Debentures and the Trust is required to pay any additional taxes (including
withholding taxes), duties, assessments or other governmental charges as a
result of a Tax Event, the Company will pay such additional amounts ("Additional
----------
Sums") on the Debentures as shall be required so that the net amounts received
----
and retained by the Trust after paying taxes (including withholding taxes),
duties, assessments or other governmental charges will be equal to the amounts
the Trust would have received if no such taxes, duties, assessments or other
governmental charges had been imposed. Whenever in this Indenture or the
Debentures there is a reference in any context to the payment of principal of or
interest on the Debentures, such mention shall be deemed to include mention of
payments of the Additional Sums provided for in this paragraph to the extent
that, in such context, Additional Sums are, were or would be payable in respect
thereof pursuant to the provisions of this paragraph and express mention of the
payment of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made; provided,
--------
16
however, that the deferral of the payment of interest during an Extension Period
-------
pursuant to Section 2.11 shall not defer the payment of any Additional Sums that
may be due and payable.
COMPLIANCE WITH CONSOLIDATION PROVISIONS. The Company will not, while
any of the Debentures remain outstanding, consolidate with, or merge into, or
merge into itself, or sell or convey all or substantially all of its property to
any other Person unless the provisions of Article XI hereof are complied with.
LIMITATION ON DIVIDENDS. If Debentures are initially issued to the
Trust or a trustee of such Trust in connection with the issuance of Trust
Securities by the Trust (regardless of whether Debentures continue to be held by
such Trust) and (i) there shall have occurred and be continuing an Event of
Default, (ii) the Company shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee, or (iii) the Company shall
have given notice of its election to defer payments of interest on the
Debentures by extending the interest payment period as provided herein and such
period, or any extension thereof, shall be continuing, then the Company shall
not, and shall not allow any Affiliate of the Company to, (x) declare or pay any
dividends or distributions on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any of the Company's capital stock or its
Affiliates' capital stock (other than payments of dividends or distributions to
the Company) or make any guarantee payments with respect to the foregoing or (y)
make any payment of principal of or interest or premium, if any, on or repay,
repurchase or redeem any debt securities of the Company or any Affiliate that
rank pari passu in all respects with or junior in interest to the Debentures
(other than, with respect to clauses (x) and (y) above, (1) repurchases,
redemptions or other acquisitions of shares of capital stock of the Company in
connection with any employment contract, benefit plan or other similar
arrangement with or for the benefit of one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of capital
stock of the Company (or securities convertible into or exercisable for such
capital stock) as consideration in an acquisition transaction entered into prior
to the applicable Extension Period, if any, (2) as a result of any exchange or
conversion of any class or series of the Company's capital stock (or any capital
stock of a subsidiary of the Company) for any class or series of the Company's
capital stock or of any class or series of the Company's indebtedness for any
class or series of the Company's capital stock, (3) the purchase of fractional
interests in shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged, (4) any declaration of a dividend in connection with any
stockholders' rights plan, or the issuance of rights, stock or other property
under any stockholders' rights plan, or the redemption or repurchase of rights
pursuant thereto, (5) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock and any
cash payments in lieu of fractional shares issued in connection therewith, or
(6) payments under the Capital Securities Guarantee).
COVENANTS AS TO THE TRUST. For so long as the Trust Securities remain
outstanding, the Company shall maintain 100% ownership of the Common Securities;
provided, however, that any permitted successor of the Company under this
-------- -------
Indenture may succeed to the Company's ownership of such Common Securities. The
Company, as owner of the Common Securities, shall, except in connection with a
distribution of Debentures to the holders of Trust Securities in liquidation of
the Trust, the redemption of all of the Trust Securities or certain mergers,
consolidations or amalgamations, each as permitted by the Declaration, cause the
Trust (a) to remain a statutory trust, (b) to otherwise continue to be
classified as a grantor trust for United States federal income tax purposes, and
(c) to cause each holder of Trust Securities to be treated as owning an
undivided beneficial interest in the Debentures.
ADDITIONAL JUNIOR INDEBTEDNESS. The Company shall not, and it shall not
cause or permit any Subsidiary of the Company to, incur, issue or be obligated
on any Additional Junior
17
Indebtedness, either directly or indirectly, by way of guarantee, suretyship or
otherwise, other than Additional Junior Indebtedness (i) that, by its terms, is
expressly stated to be either junior and subordinate or pari passu in all
respects to the Debentures, and (ii) of which the Company has notified (and, if
then required under the applicable guidelines of the regulating entity, has
received approval from) the Federal Reserve, if the Company is a bank holding
company, or the OTS, if the Company is a savings and loan holding company.
SECURITYHOLDERS' LISTS AND REPORTS
BY THE COMPANY AND THE TRUSTEE
SECURITYHOLDERS' LISTS. The Company covenants and agrees that it will
furnish or caused to be furnished to the Trustee:
ON EACH REGULAR RECORD DATE FOR THE DEBENTURES, A LIST, IN SUCH FORM AS THE
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TRUSTEE MAY REASONABLY REQUIRE, OF THE NAMES AND ADDRESSES OF THE
---------------------------------------------------------------------------
SECURITYHOLDERS OF THE DEBENTURES AS OF SUCH RECORD DATE; AND
----------------------------------------------------------------------
AT SUCH OTHER TIMES AS THE TRUSTEE MAY REQUEST IN WRITING, WITHIN 30 DAYS
---------------------------------------------------------------------------
AFTER THE RECEIPT BY THE COMPANY OF ANY SUCH REQUEST, A LIST OF SIMILAR FORM AND
--------------------------------------------------------------------------------
CONTENT AS OF A DATE NOT MORE THAN 15 DAYS PRIOR TO THE TIME SUCH LIST IS
--------------------------------------------------------------------------------
FURNISHED;
----------
except that no such lists need be furnished under this Section 4.1 so long as
the Trustee is in possession thereof by reason of its acting as Debenture
registrar.
PRESERVATION AND DISCLOSURE OF LISTS.
THE TRUSTEE SHALL PRESERVE, IN AS CURRENT A FORM AS IS REASONABLY
---------------------------------------------------------------------------
PRACTICABLE, ALL INFORMATION AS TO THE NAMES AND ADDRESSES OF THE HOLDERS OF
--------------------------------------------------------------------------------
DEBENTURES (1) CONTAINED IN THE MOST RECENT LIST FURNISHED TO IT AS PROVIDED IN
--------------------------------------------------------------------------------
SECTION 4.1 OR (2) RECEIVED BY IT IN THE CAPACITY OF DEBENTURES REGISTRAR (IF SO
--------------------------------------------------------------------------------
ACTING) HEREUNDER. THE TRUSTEE MAY DESTROY ANY LIST FURNISHED TO IT AS PROVIDED
--------------------------------------------------------------------------------
IN SECTION 4.1 UPON RECEIPT OF A NEW LIST SO FURNISHED.
-----------------------------------------------------------------
IN CASE THREE OR MORE HOLDERS OF DEBENTURES (HEREINAFTER REFERRED TO AS
---------------------------------------------------------------------------
"APPLICANTS") APPLY IN WRITING TO THE TRUSTEE AND FURNISH TO THE TRUSTEE
--------------------------------------------------------------------------------
REASONABLE PROOF THAT EACH SUCH APPLICANT HAS OWNED A DEBENTURE FOR A PERIOD OF
--------------------------------------------------------------------------------
AT LEAST 6 MONTHS PRECEDING THE DATE OF SUCH APPLICATION, AND SUCH APPLICATION
--------------------------------------------------------------------------------
STATES THAT THE APPLICANTS DESIRE TO COMMUNICATE WITH OTHER HOLDERS OF
--------------------------------------------------------------------------------
DEBENTURES WITH RESPECT TO THEIR RIGHTS UNDER THIS INDENTURE OR UNDER SUCH
--------------------------------------------------------------------------------
DEBENTURES AND IS ACCOMPANIED BY A COPY OF THE FORM OF PROXY OR OTHER
--------------------------------------------------------------------------------
COMMUNICATION WHICH SUCH APPLICANTS PROPOSE TO TRANSMIT, THEN THE TRUSTEE SHALL
--------------------------------------------------------------------------------
WITHIN 5 BUSINESS DAYS AFTER THE RECEIPT OF SUCH APPLICATION, AT ITS ELECTION,
--------------------------------------------------------------------------------
EITHER:
-------
AFFORD SUCH APPLICANTS ACCESS TO THE INFORMATION PRESERVED AT THE TIME
BY THE TRUSTEE IN ACCORDANCE WITH THE PROVISIONS OF SUBSECTION (A) OF
THIS SECTION 4.2, OR
INFORM SUCH APPLICANTS AS TO THE APPROXIMATE NUMBER OF HOLDERS OF
DEBENTURES WHOSE NAMES AND ADDRESSES APPEAR IN THE INFORMATION
PRESERVED AT THE TIME BY THE TRUSTEE IN ACCORDANCE WITH THE PROVISIONS
OF SUBSECTION (A) OF THIS SECTION 4.2, AND AS TO THE APPROXIMATE COST
OF MAILING TO SUCH SECURITYHOLDERS THE FORM OF PROXY OR OTHER
COMMUNICATION, IF ANY, SPECIFIED IN SUCH APPLICATION.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder whose name and address appear in the information
preserved at the time by the Trustee in accordance with the provisions of
subsection (a) of this Section 4.2 a copy of the form of proxy or other
communication which is specified in such request with
18
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless within five days after such tender, the Trustee shall mail to
such applicants and file with the Securities and Exchange Commission, if
permitted or required by applicable law, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the holders of
all Debentures, as the case may be, or would be in violation of applicable law.
Such written statement shall specify the basis of such opinion. If said
Commission, as permitted or required by applicable law, after opportunity for a
hearing upon the objections specified in the written statement so filed, shall
enter an order refusing to sustain any of such objections or if, after the entry
of an order sustaining one or more of such objections, said Commission shall
find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Securityholders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
EACH AND EVERY HOLDER OF DEBENTURES, BY RECEIVING AND HOLDING THE SAME,
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AGREES WITH COMPANY AND THE TRUSTEE THAT NEITHER THE COMPANY NOR THE TRUSTEE NOR
--------------------------------------------------------------------------------
ANY PAYING AGENT SHALL BE HELD ACCOUNTABLE BY REASON OF THE DISCLOSURE OF ANY
--------------------------------------------------------------------------------
SUCH INFORMATION AS TO THE NAMES AND ADDRESSES OF THE HOLDERS OF DEBENTURES IN
--------------------------------------------------------------------------------
ACCORDANCE WITH THE PROVISIONS OF SUBSECTION (B) OF THIS SECTION 4.2, REGARDLESS
--------------------------------------------------------------------------------
OF THE SOURCE FROM WHICH SUCH INFORMATION WAS DERIVED, AND THAT THE TRUSTEE
--------------------------------------------------------------------------------
SHALL NOT BE HELD ACCOUNTABLE BY REASON OF MAILING ANY MATERIAL PURSUANT TO A
--------------------------------------------------------------------------------
REQUEST MADE UNDER SAID SUBSECTION (B).
--------------------------------------------
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
UPON AN EVENT OF DEFAULT
EVENTS OF DEFAULT. "Event of Default," wherever used herein, means any
one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
THE COMPANY DEFAULTS IN THE PAYMENT OF ANY INTEREST UPON ANY DEBENTURE WHEN
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IT BECOMES DUE AND PAYABLE, AND FAILS TO CURE SUCH DEFAULT FOR A PERIOD OF 30
--------------------------------------------------------------------------------
DAYS; PROVIDED, HOWEVER, THAT A VALID EXTENSION OF AN INTEREST PAYMENT PERIOD BY
--------------------------------------------------------------------------------
THE COMPANY IN ACCORDANCE WITH THE TERMS OF THIS INDENTURE SHALL NOT CONSTITUTE
--------------------------------------------------------------------------------
A DEFAULT IN THE PAYMENT OF INTEREST FOR THIS PURPOSE; OR
-------------------------------------------------------------------
THE COMPANY DEFAULTS IN THE PAYMENT OF ALL OR ANY PART OF THE PRINCIPAL OF
---------------------------------------------------------------------------
(OR PREMIUM, IF ANY, ON) ANY DEBENTURES AS AND WHEN THE SAME SHALL BECOME DUE
--------------------------------------------------------------------------------
AND PAYABLE EITHER AT MATURITY, UPON REDEMPTION, BY DECLARATION OF ACCELERATION
--------------------------------------------------------------------------------
OR OTHERWISE; OR
------------------
THE COMPANY DEFAULTS IN THE PERFORMANCE OF, OR BREACHES, ANY OF ITS
---------------------------------------------------------------------------
COVENANTS OR AGREEMENTS IN THIS INDENTURE OR IN THE TERMS OF THE DEBENTURES
--------------------------------------------------------------------------------
ESTABLISHED AS CONTEMPLATED IN THIS INDENTURE (OTHER THAN A COVENANT OR
--------------------------------------------------------------------------------
AGREEMENT A DEFAULT IN WHOSE PERFORMANCE OR WHOSE BREACH IS ELSEWHERE IN THIS
--------------------------------------------------------------------------------
SECTION SPECIFICALLY DEALT WITH), AND CONTINUANCE OF SUCH DEFAULT OR BREACH FOR
--------------------------------------------------------------------------------
A PERIOD OF 60 DAYS AFTER THERE HAS BEEN GIVEN, BY REGISTERED OR CERTIFIED MAIL,
--------------------------------------------------------------------------------
TO THE COMPANY BY THE TRUSTEE OR TO THE COMPANY AND THE TRUSTEE BY THE HOLDERS
--------------------------------------------------------------------------------
OF AT LEAST 25% IN AGGREGATE PRINCIPAL AMOUNT OF THE OUTSTANDING DEBENTURES, A
--------------------------------------------------------------------------------
WRITTEN NOTICE SPECIFYING SUCH DEFAULT OR BREACH AND REQUIRING IT TO BE REMEDIED
--------------------------------------------------------------------------------
AND STATING THAT SUCH NOTICE IS A "NOTICE OF DEFAULT" HEREUNDER; OR
------------------------------------------------------------------------------
A COURT OF COMPETENT JURISDICTION SHALL ENTER A DECREE OR ORDER FOR RELIEF
---------------------------------------------------------------------------
IN RESPECT OF THE COMPANY IN AN INVOLUNTARY CASE UNDER ANY APPLICABLE
--------------------------------------------------------------------------------
BANKRUPTCY, INSOLVENCY, REORGANIZATION OR OTHER SIMILAR LAW NOW OR HEREAFTER IN
--------------------------------------------------------------------------------
EFFECT, OR APPOINTING A RECEIVER, LIQUIDATOR, ASSIGNEE, CUSTODIAN, TRUSTEE,
--------------------------------------------------------------------------------
19
SEQUESTRATOR (OR SIMILAR OFFICIAL) OF THE COMPANY OR FOR ANY SUBSTANTIAL PART OF
--------------------------------------------------------------------------------
ITS PROPERTY, OR ORDERING THE WINDING-UP OR LIQUIDATION OF ITS AFFAIRS AND SUCH
--------------------------------------------------------------------------------
DECREE OR ORDER SHALL REMAIN UNSTAYED AND IN EFFECT FOR A PERIOD OF 90
--------------------------------------------------------------------------------
CONSECUTIVE DAYS; OR
----------------------
THE COMPANY SHALL COMMENCE A VOLUNTARY CASE UNDER ANY APPLICABLE
-------------------------------------------------------------------------
BANKRUPTCY, INSOLVENCY, REORGANIZATION OR OTHER SIMILAR LAW NOW OR HEREAFTER IN
--------------------------------------------------------------------------------
EFFECT, SHALL CONSENT TO THE ENTRY OF AN ORDER FOR RELIEF IN AN INVOLUNTARY CASE
--------------------------------------------------------------------------------
UNDER ANY SUCH LAW, OR SHALL CONSENT TO THE APPOINTMENT OF OR TAKING POSSESSION
--------------------------------------------------------------------------------
BY A RECEIVER, LIQUIDATOR, ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR (OR OTHER
--------------------------------------------------------------------------------
SIMILAR OFFICIAL) OF THE COMPANY OR OF ANY SUBSTANTIAL PART OF ITS PROPERTY, OR
--------------------------------------------------------------------------------
SHALL MAKE ANY GENERAL ASSIGNMENT FOR THE BENEFIT OF CREDITORS, OR SHALL FAIL
--------------------------------------------------------------------------------
GENERALLY TO PAY ITS DEBTS AS THEY BECOME DUE; OR
----------------------------------------------------------
THE TRUST SHALL HAVE VOLUNTARILY OR INVOLUNTARILY LIQUIDATED, DISSOLVED,
---------------------------------------------------------------------------
WOUND-UP ITS BUSINESS OR OTHERWISE TERMINATED ITS EXISTENCE EXCEPT IN CONNECTION
--------------------------------------------------------------------------------
WITH (I) THE DISTRIBUTION OF THE DEBENTURES TO HOLDERS OF SUCH TRUST SECURITIES
--------------------------------------------------------------------------------
IN LIQUIDATION OF THEIR INTERESTS IN THE TRUST, (II) THE REDEMPTION OF ALL OF
--------------------------------------------------------------------------------
THE OUTSTANDING TRUST SECURITIES OR (III) CERTAIN MERGERS, CONSOLIDATIONS OR
--------------------------------------------------------------------------------
AMALGAMATIONS, EACH AS PERMITTED BY THE DECLARATION.
----------------------------------------------------------
If an Event of Default occurs and is continuing with respect to the
Debentures, then, and in each and every such case, unless the principal of the
Debentures shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Debentures
then outstanding hereunder, by notice in writing to the Company (and to the
Trustee if given by Securityholders), may declare the entire principal of the
Debentures and the interest accrued thereon, if any, to be due and payable
immediately, and upon any such declaration the same shall become immediately due
and payable.
The foregoing provisions, however, are subject to the condition that if, at
any time after the principal of the Debentures shall have been so declared due
and payable, and before any judgment or decree for the payment of the moneys due
shall have been obtained or entered as hereinafter provided, (i) the Company
shall pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Debentures and the principal of and
premium, if any, on the Debentures which shall have become due otherwise than by
acceleration (with interest upon such principal and premium, if any, and
Additional Interest) and such amount as shall be sufficient to cover reasonable
compensation to the Trustee and each predecessor Trustee, their respective
agents, attorneys and counsel, and all other amounts due to the Trustee pursuant
to Section 6.6, if any, and (ii) all Events of Default under this Indenture,
other than the non-payment of the principal of or premium, if any, on Debentures
which shall have become due by acceleration, shall have been cured, waived or
otherwise remedied as provided herein -- then and in every such case the holders
of a majority in aggregate principal amount of the Debentures then outstanding,
by written notice to the Company and to the Trustee, may waive all defaults and
rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
the Trustee and the holders of the Debentures shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Company, the Trustee and the holders of the Debentures shall
continue as though no such proceeding had been taken.
PAYMENT OF DEBENTURES ON DEFAULT; SUIT THEREFOR. The Company covenants
that upon the occurrence of an Event of Default pursuant to Section 5.1(a) or
Section 5.1(b) then, upon demand of the Trustee, the Company will pay to the
Trustee, for the benefit of the holders of the Debentures the whole amount that
then shall have become due and payable on all Debentures for principal and
premium, if any, or interest, or both, as the case may be, with Additional
Interest accrued on the
20
Debentures (to the extent that payment of such interest is enforceable under
applicable law and, if the Debentures are held by the Trust or a trustee of such
Trust, without duplication of any other amounts paid by the Trust or a trustee
in respect thereof); and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including a reasonable
compensation to the Trustee, its agents, attorneys and counsel, and any other
amounts due to the Trustee under Section 6.6. In case the Company shall fail
forthwith to pay such amounts upon such demand, the Trustee, in its own name and
as trustee of an express trust, shall be entitled and empowered to institute any
actions or proceedings at law or in equity for the collection of the sums so due
and unpaid, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company or
any other obligor on such Debentures and collect in the manner provided by law
out of the property of the Company or any other obligor on such Debentures
wherever situated the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Debentures under
Bankruptcy Law, or in case a receiver or trustee shall have been appointed for
the property of the Company or such other obligor, or in the case of any other
similar judicial proceedings relative to the Company or other obligor upon the
Debentures, or to the creditors or property of the Company or such other
obligor, the Trustee, irrespective of whether the principal of the Debentures
shall then be due and payable as therein expressed or by declaration of
acceleration or otherwise and irrespective of whether the Trustee shall have
made any demand pursuant to the provisions of this Section 5.2, shall be
entitled and empowered, by intervention in such proceedings or otherwise,
(i) to file and prove a claim or claims for the whole amount of principal
and interest owing and unpaid in respect of the Debentures,
(ii) in case of any judicial proceedings, to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for reasonable
compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all
other amounts due to the Trustee under Section 6.6), and of the
Securityholders allowed in such judicial proceedings relative to the
Company or any other obligor on the Debentures, or to the creditors or
property of the Company or such other obligor, unless prohibited by
applicable law and regulations, to vote on behalf of the holders of
the Debentures in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or Person performing similar functions in
comparable proceedings,
(iii) to collect and receive any moneys or other property payable or
deliverable on any such claims, and
(iv) to distribute the same after the deduction of its charges and
expenses.
Any receiver, assignee or trustee in bankruptcy or reorganization is hereby
authorized by each of the Securityholders to make such payments to the Trustee,
and, in the event that the Trustee shall consent to the making of such payments
directly to the Securityholders, to pay to the Trustee such amounts as shall be
sufficient to cover reasonable compensation to the Trustee, each predecessor
Trustee and their respective agents, attorneys and counsel, and all other
amounts due to the Trustee under Section 6.6.
Nothing herein contained shall be construed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan of reorganization, arrangement, adjustment or composition affecting the
Debentures or the rights of any holder thereof or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
21
All rights of action and of asserting claims under this Indenture, or under
any of the Debentures, may be enforced by the Trustee without the possession of
any of the Debentures, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the holders of the
Debentures.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
holders of the Debentures, and it shall not be necessary to make any holders of
the Debentures parties to any such proceedings.
APPLICATION OF MONEYS COLLECTED BY TRUSTEE. Any moneys collected by the
Trustee pursuant to this Article V shall be applied in the following order, at
the date or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Debentures in respect of which moneys have been
collected, and stamping thereon the payment, if only partially paid, and upon
surrender thereof if fully paid:
First: To the payment of costs and expenses incurred by, and reasonable
fees of, the Trustee, its agents, attorneys and counsel, and of all other
amounts due to the Trustee under Section 6.6;
Second: To the payment of all Senior Indebtedness of the Company if and to
the extent required by Article XV;
Third: To the payment of the amounts then due and unpaid upon Debentures
for principal (and premium, if any), and interest on the Debentures, in respect
of which or for the benefit of which money has been collected, ratably, without
preference or priority of any kind, according to the amounts due on such
Debentures (including Additional Interest); and
Fourth: The balance, if any, to the Company.
PROCEEDINGS BY SECURITYHOLDERS. No holder of any Debenture shall have
any right to institute any suit, action or proceeding for any remedy hereunder,
unless such holder previously shall have given to the Trustee written notice of
an Event of Default with respect to the Debentures and unless the holders of not
less than 25% in aggregate principal amount of the Debentures then outstanding
shall have given the Trustee a written request to institute such action, suit or
proceeding and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred thereby,
and the Trustee for 60 days after its receipt of such notice, request and offer
of indemnity shall have failed to institute any such action, suit or proceeding.
Notwithstanding any other provisions in this Indenture, however, the right
of any holder of any Debenture to receive payment of the principal of, premium,
if any, and interest, on such Debenture when due, or to institute suit for the
enforcement of any such payment, shall not be impaired or affected without the
consent of such holder and by accepting a Debenture hereunder it is expressly
understood, intended and covenanted by the taker and holder of every Debenture
with every other such taker and holder and the Trustee, that no one or more
holders of Debentures shall have any right in any manner whatsoever by virtue or
by availing itself of any provision of this Indenture to affect, disturb or
prejudice the rights of the holders of any other Debentures, or to obtain or
seek to obtain priority over or preference to any other such holder, or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal, ratable and common benefit of all holders of Debentures. For the
protection and enforcement of the provisions of this Section, each and every
Securityholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
22
PROCEEDINGS BY TRUSTEE. In case of an Event of Default hereunder the
Trustee may in its discretion proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any of such rights, either by
suit in equity or by action at law or by proceeding in bankruptcy or otherwise,
whether for the specific enforcement of any covenant or agreement contained in
this Indenture or in aid of the exercise of any power granted in this Indenture,
or to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
REMEDIES CUMULATIVE AND CONTINUING; DELAY OR OMISSION NOT A WAIVER.
Except as otherwise provided in Section 2.6, all powers and remedies given by
this Article V to the Trustee or to the Securityholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any other powers and
remedies available to the Trustee or the holders of the Debentures, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture or otherwise established
with respect to the Debentures, and no delay or omission of the Trustee or of
any holder of any of the Debentures to exercise any right, remedy or power
accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right, remedy or power, or shall be construed to be a waiver of
any such default or an acquiescence therein; and, subject to the provisions of
Section 5.4, every power and remedy given by this Article V or by law to the
Trustee or to the Securityholders may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee (in accordance with its
duties under Section 6.1) or by the Securityholders.
DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY OF
SECURITYHOLDERS. The holders of a majority in aggregate principal amount of
the Debentures affected (voting as one class) at the time outstanding shall have
the right to direct the time, method, and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee with respect to such Debentures; provided, however, that (subject
-------- -------
to the provisions of Section 6.1) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall determine that the action so
directed would be unjustly prejudicial to the holders not taking part in such
direction or if the Trustee being advised by counsel determines that the action
or proceeding so directed may not lawfully be taken or if a Responsible Officer
of the Trustee shall determine that the action or proceedings so directed would
involve the Trustee in personal liability.
The holders of a majority in aggregate principal amount of the Debentures
at the time outstanding may on behalf of the holders of all of the Debentures
waive (or modify any previously granted waiver of) any past default or Event of
Default, and its consequences, except a default (a) in the payment of principal
of, premium, if any, or interest on any of the Debentures, (b) in respect of
covenants or provisions hereof which cannot be modified or amended without the
consent of the holder of each Debenture affected, or (c) in respect of the
covenants contained in Section 3.9; provided, however, that if the Debentures
-------- -------
are held by the Trust or a trustee of such trust, such waiver or modification to
such waiver shall not be effective until the holders of a majority in
Liquidation Amount of Trust Securities of the Trust shall have consented to such
waiver or modification to such waiver, provided, further, that if the consent of
-------- -------
the holder of each outstanding Debenture is required, such waiver shall not be
effective until each holder of the Trust Securities of the Trust shall have
consented to such waiver. Upon any such waiver, the default covered thereby
shall be deemed to be cured for all purposes of this Indenture and the Company,
the Trustee and the holders of the Debentures shall be restored to their former
positions and rights hereunder, respectively; but no such waiver shall extend to
any subsequent or other default or Event of Default or impair any right
consequent thereon. Whenever any default or Event of Default hereunder shall
have been waived as permitted by this Section, said default or Event of Default
shall for all purposes of the Debentures and this Indenture be deemed to have
been cured and to be not continuing.
23
NOTICE OF DEFAULTS. The Trustee shall, within 90 days after the actual
knowledge by a Responsible Officer of the Trustee of the occurrence of a default
with respect to the Debentures, mail to all Securityholders, as the names and
addresses of such holders appear upon the Debenture Register, notice of all
defaults with respect to the Debentures known to the Trustee, unless such
defaults shall have been cured before the giving of such notice (the term
"defaults" for the purpose of this Section 5.8 being hereby defined to be the
events specified in clauses (a), (b), (c), (d), (e) and (f) of Section 5.1, not
including periods of grace, if any, provided for therein); provided, however,
-------- -------
that, except in the case of default in the payment of the principal of, premium,
if any, or interest on any of the Debentures, the Trustee shall be protected in
withholding such notice if and so long as a Responsible Officer of the Trustee
in good faith determines that the withholding of such notice is in the interests
of the Securityholders.
UNDERTAKING TO PAY COSTS. All parties to this Indenture agree, and each
holder of any Debenture by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided, however, that the provisions of this
-------- -------
Section 5.9 shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Securityholder, or group of Securityholders, holding in the
aggregate more than 10% in principal amount of the Debentures outstanding, or to
any suit instituted by any Securityholder for the enforcement of the payment of
the principal of (or premium, if any) or interest on any Debenture against the
Company on or after the same shall have become due and payable.
CONCERNING THE TRUSTEE
DUTIES AND RESPONSIBILITIES OF TRUSTEE. With respect to the holders of
Debentures issued hereunder, the Trustee, prior to the occurrence of an Event of
Default with respect to the Debentures and after the curing or waiving of all
Events of Default which may have occurred, with respect to the Debentures,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture, and no implied covenants shall be read into this
Indenture against the Trustee. In case an Event of Default with respect to the
Debentures has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that:
PRIOR TO THE OCCURRENCE OF AN EVENT OF DEFAULT WITH RESPECT TO DEBENTURES
---------------------------------------------------------------------------
AND AFTER THE CURING OR WAIVING OF ALL EVENTS OF DEFAULT WHICH MAY HAVE OCCURRED
--------------------------------------------------------------------------------
THE DUTIES AND OBLIGATIONS OF THE TRUSTEE WITH RESPECT TO DEBENTURES
SHALL BE DETERMINED SOLELY BY THE EXPRESS PROVISIONS OF THIS
INDENTURE, AND THE TRUSTEE SHALL NOT BE LIABLE EXCEPT FOR THE
PERFORMANCE OF SUCH DUTIES AND OBLIGATIONS WITH RESPECT TO THE
DEBENTURES AS ARE SPECIFICALLY SET FORTH IN THIS INDENTURE, AND NO
IMPLIED COVENANTS OR OBLIGATIONS SHALL BE READ INTO THIS INDENTURE
AGAINST THE TRUSTEE, AND
IN THE ABSENCE OF BAD FAITH ON THE PART OF THE TRUSTEE, THE TRUSTEE
MAY CONCLUSIVELY RELY, AS TO THE TRUTH OF THE STATEMENTS AND THE
CORRECTNESS OF THE OPINIONS EXPRESSED
24
THEREIN, UPON ANY CERTIFICATES OR OPINIONS FURNISHED TO THE TRUSTEE
AND CONFORMING TO THE REQUIREMENTS OF THIS INDENTURE; BUT, IN THE CASE
OF ANY SUCH CERTIFICATES OR OPINIONS WHICH BY ANY PROVISION HEREOF ARE
SPECIFICALLY REQUIRED TO BE FURNISHED TO THE TRUSTEE, THE TRUSTEE
SHALL BE UNDER A DUTY TO EXAMINE THE SAME TO DETERMINE WHETHER OR NOT
THEY CONFORM TO THE REQUIREMENTS OF THIS INDENTURE;
THE TRUSTEE SHALL NOT BE LIABLE FOR ANY ERROR OF JUDGMENT MADE IN GOOD
---------------------------------------------------------------------------
FAITH BY A RESPONSIBLE OFFICER OR OFFICERS OF THE TRUSTEE, UNLESS IT SHALL BE
--------------------------------------------------------------------------------
PROVED THAT THE TRUSTEE WAS NEGLIGENT IN ASCERTAINING THE PERTINENT FACTS; AND
--------------------------------------------------------------------------------
THE TRUSTEE SHALL NOT BE LIABLE WITH RESPECT TO ANY ACTION TAKEN OR OMITTED
---------------------------------------------------------------------------
TO BE TAKEN BY IT IN GOOD FAITH, IN ACCORDANCE WITH THE DIRECTION OF THE
--------------------------------------------------------------------------------
SECURITYHOLDERS PURSUANT TO SECTION 5.7, RELATING TO THE TIME, METHOD AND PLACE
--------------------------------------------------------------------------------
OF CONDUCTING ANY PROCEEDING FOR ANY REMEDY AVAILABLE TO THE TRUSTEE, OR
--------------------------------------------------------------------------------
EXERCISING ANY TRUST OR POWER CONFERRED UPON THE TRUSTEE, UNDER THIS INDENTURE.
--------------------------------------------------------------------------------
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is ground for believing that the repayment of
such funds or liability is not assured to it under the terms of this Indenture
or indemnity satisfactory to the Trustee against such risk is not reasonably
assured to it.
RELIANCE ON DOCUMENTS, OPINIONS, ETC. Except as otherwise provided in
Section 6.1:
THE TRUSTEE MAY CONCLUSIVELY RELY AND SHALL BE FULLY PROTECTED IN ACTING OR
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REFRAINING FROM ACTING UPON ANY RESOLUTION, CERTIFICATE, STATEMENT, INSTRUMENT,
--------------------------------------------------------------------------------
OPINION, REPORT, NOTICE, REQUEST, CONSENT, ORDER, BOND, NOTE, DEBENTURE OR OTHER
--------------------------------------------------------------------------------
PAPER OR DOCUMENT BELIEVED BY IT TO BE GENUINE AND TO HAVE BEEN SIGNED OR
--------------------------------------------------------------------------------
PRESENTED BY THE PROPER PARTY OR PARTIES;
-----------------------------------------------
ANY REQUEST, DIRECTION, ORDER OR DEMAND OF THE COMPANY MENTIONED HEREIN
---------------------------------------------------------------------------
SHALL BE SUFFICIENTLY EVIDENCED BY AN OFFICERS' CERTIFICATE (UNLESS OTHER
--------------------------------------------------------------------------------
EVIDENCE IN RESPECT THEREOF BE HEREIN SPECIFICALLY PRESCRIBED); AND ANY BOARD
--------------------------------------------------------------------------------
RESOLUTION MAY BE EVIDENCED TO THE TRUSTEE BY A COPY THEREOF CERTIFIED BY THE
--------------------------------------------------------------------------------
SECRETARY OR AN ASSISTANT SECRETARY OF THE COMPANY;
----------------------------------------------------------
THE TRUSTEE MAY CONSULT WITH COUNSEL OF ITS SELECTION AND ANY ADVICE OR
---------------------------------------------------------------------------
OPINION OF COUNSEL SHALL BE FULL AND COMPLETE AUTHORIZATION AND PROTECTION IN
--------------------------------------------------------------------------------
RESPECT OF ANY ACTION TAKEN, SUFFERED OR OMITTED BY IT HEREUNDER IN GOOD FAITH
--------------------------------------------------------------------------------
AND IN ACCORDANCE WITH SUCH ADVICE OR OPINION OF COUNSEL;
------------------------------------------------------------------
THE TRUSTEE SHALL BE UNDER NO OBLIGATION TO EXERCISE ANY OF THE RIGHTS OR
---------------------------------------------------------------------------
POWERS VESTED IN IT BY THIS INDENTURE AT THE REQUEST, ORDER OR DIRECTION OF ANY
--------------------------------------------------------------------------------
OF THE SECURITYHOLDERS, PURSUANT TO THE PROVISIONS OF THIS INDENTURE, UNLESS
--------------------------------------------------------------------------------
SUCH SECURITYHOLDERS SHALL HAVE OFFERED TO THE TRUSTEE REASONABLE SECURITY OR
--------------------------------------------------------------------------------
INDEMNITY AGAINST THE COSTS, EXPENSES AND LIABILITIES WHICH MAY BE INCURRED
--------------------------------------------------------------------------------
THEREIN OR THEREBY;
---------------------
THE TRUSTEE SHALL NOT BE LIABLE FOR ANY ACTION TAKEN OR OMITTED BY IT IN
---------------------------------------------------------------------------
GOOD FAITH AND BELIEVED BY IT TO BE AUTHORIZED OR WITHIN THE DISCRETION OR
--------------------------------------------------------------------------------
RIGHTS OR POWERS CONFERRED UPON IT BY THIS INDENTURE; NOTHING CONTAINED HEREIN
--------------------------------------------------------------------------------
SHALL, HOWEVER, RELIEVE THE TRUSTEE OF THE OBLIGATION, UPON THE OCCURRENCE OF AN
--------------------------------------------------------------------------------
EVENT OF DEFAULT WITH RESPECT TO THE DEBENTURES (THAT HAS NOT BEEN CURED OR
--------------------------------------------------------------------------------
WAIVED) TO EXERCISE WITH RESPECT TO DEBENTURES SUCH OF THE RIGHTS AND POWERS
--------------------------------------------------------------------------------
VESTED IN IT BY THIS INDENTURE, AND TO USE THE SAME DEGREE OF CARE AND SKILL IN
--------------------------------------------------------------------------------
THEIR EXERCISE, AS A PRUDENT MAN WOULD EXERCISE OR USE UNDER THE CIRCUMSTANCES
--------------------------------------------------------------------------------
IN THE CONDUCT OF HIS OWN AFFAIRS;
----------------------------------------
THE TRUSTEE SHALL NOT BE BOUND TO MAKE ANY INVESTIGATION INTO THE FACTS OR
---------------------------------------------------------------------------
MATTERS STATED IN ANY RESOLUTION, CERTIFICATE, STATEMENT, INSTRUMENT, OPINION,
--------------------------------------------------------------------------------
REPORT, NOTICE, REQUEST, CONSENT, ORDER,
--------------------------------------------
25
APPROVAL, BOND, DEBENTURE, COUPON OR OTHER PAPER OR DOCUMENT, UNLESS REQUESTED
--------------------------------------------------------------------------------
IN WRITING TO DO SO BY THE HOLDERS OF NOT LESS THAN A MAJORITY IN AGGREGATE
--------------------------------------------------------------------------------
PRINCIPAL AMOUNT OF THE OUTSTANDING DEBENTURES AFFECTED THEREBY; PROVIDED,
--------------------------------------------------------------------------------
HOWEVER, THAT IF THE PAYMENT WITHIN A REASONABLE TIME TO THE TRUSTEE OF THE
--------------------------------------------------------------------------------
COSTS, EXPENSES OR LIABILITIES LIKELY TO BE INCURRED BY IT IN THE MAKING OF SUCH
--------------------------------------------------------------------------------
INVESTIGATION IS, IN THE OPINION OF THE TRUSTEE, NOT REASONABLY ASSURED TO THE
--------------------------------------------------------------------------------
TRUSTEE BY THE SECURITY AFFORDED TO IT BY THE TERMS OF THIS INDENTURE, THE
--------------------------------------------------------------------------------
TRUSTEE MAY REQUIRE REASONABLE INDEMNITY AGAINST SUCH EXPENSE OR LIABILITY AS A
--------------------------------------------------------------------------------
CONDITION TO SO PROCEEDING;
------------------------------
THE TRUSTEE MAY EXECUTE ANY OF THE TRUSTS OR POWERS HEREUNDER OR PERFORM
---------------------------------------------------------------------------
ANY DUTIES HEREUNDER EITHER DIRECTLY OR BY OR THROUGH AGENTS (INCLUDING ANY
--------------------------------------------------------------------------------
AUTHENTICATING AGENT) OR ATTORNEYS, AND THE TRUSTEE SHALL NOT BE RESPONSIBLE FOR
--------------------------------------------------------------------------------
ANY MISCONDUCT OR NEGLIGENCE ON THE PART OF ANY SUCH AGENT OR ATTORNEY APPOINTED
--------------------------------------------------------------------------------
BY IT WITH DUE CARE; AND
-----------------------------
WITH THE EXCEPTIONS OF DEFAULTS UNDER SECTIONS 5.1(A) OR 5.1(B), THE
---------------------------------------------------------------------------
TRUSTEE SHALL NOT BE CHARGED WITH KNOWLEDGE OF ANY DEFAULT OR EVENT OF DEFAULT
--------------------------------------------------------------------------------
WITH RESPECT TO THE DEBENTURES UNLESS A WRITTEN NOTICE OF SUCH DEFAULT OR EVENT
--------------------------------------------------------------------------------
OF DEFAULT SHALL HAVE BEEN GIVEN TO THE TRUSTEE BY THE COMPANY OR ANY OTHER
--------------------------------------------------------------------------------
OBLIGOR ON THE DEBENTURES OR BY ANY HOLDER OF THE DEBENTURES.
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NO RESPONSIBILITY FOR RECITALS, ETC. The recitals contained herein and
in the Debentures (except in the certificate of authentication of the Trustee or
the Authenticating Agent) shall be taken as the statements of the Company, and
the Trustee and the Authenticating Agent assume no responsibility for the
correctness of the same. The Trustee and the Authenticating Agent make no
representations as to the validity or sufficiency of this Indenture or of the
Debentures. The Trustee and the Authenticating Agent shall not be accountable
for the use or application by the Company of any Debentures or the proceeds of
any Debentures authenticated and delivered by the Trustee or the Authenticating
Agent in conformity with the provisions of this Indenture.
TRUSTEE, AUTHENTICATING AGENT, PAYING AGENTS, TRANSFER AGENTS OR REGISTRAR
MAY OWN DEBENTURES. The Trustee or any Authenticating Agent or any paying
agent or any transfer agent or any Debenture registrar, in its individual or any
other capacity, may become the owner or pledgee of Debentures with the same
rights it would have if it were not Trustee, Authenticating Agent, paying agent,
transfer agent or Debenture registrar.
MONEYS TO BE HELD IN TRUST. Subject to the provisions of Section 12.4,
all moneys received by the Trustee or any paying agent shall, until used or
applied as herein provided, be held in trust for the purpose for which they were
received, but need not be segregated from other funds except to the extent
required by law. The Trustee and any paying agent shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed in
writing with the Company. So long as no Event of Default shall have occurred
and be continuing, all interest allowed on any such moneys shall be paid from
time to time upon the written order of the Company, signed by the Chairman of
the Board of Directors, the Chief Executive Officer, the President, a Managing
Director, a Vice President, the Treasurer or an Assistant Treasurer of the
Company.
COMPENSATION AND EXPENSES OF TRUSTEE. The Company covenants and agrees
to pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any of the provisions of this Indenture (including the reasonable compensation
and the expenses and disbursements of its counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advance as may
arise from its negligence or willful misconduct. For purposes of clarification,
this Section 6.6 does not contemplate the payment by the Company of acceptance
or annual administration fees owing to the Trustee pursuant to the services to
be provided by the Trustee under this Indenture or the fees and expenses of the
Trustee's counsel in connection with the closing of
26
the transactions contemplated by this Indenture. The Company also covenants to
indemnify each of the Trustee or any predecessor Trustee (and its officers,
agents, directors and employees) for, and to hold it harmless against, any and
all loss, damage, claim, liability or expense including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or willful
misconduct on the part of the Trustee and arising out of or in connection with
the acceptance or administration of this trust, including the costs and expenses
of defending itself against any claim of liability. The obligations of the
Company under this Section 6.6 to compensate and indemnify the Trustee and to
pay or reimburse the Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder. Such additional indebtedness
shall be secured by a lien prior to that of the Debentures upon all property and
funds held or collected by the Trustee as such, except funds held in trust for
the benefit of the holders of particular Debentures.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(d), Section 5.1(e)
or Section 5.1(f), the expenses (including the reasonable charges and expenses
of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
The provisions of this Section shall survive the resignation or removal of
the Trustee and the defeasance or other termination of this Indenture.
Notwithstanding anything in this Indenture or any Debenture to the
contrary, the Trustee shall have no obligation whatsoever to advance funds to
pay any principal of or interest on or other amounts with respect to the
Debentures or otherwise advance funds to or on behalf of the Company.
OFFICERS' CERTIFICATE AS EVIDENCE. Except as otherwise provided in
Sections 6.1 and 6.2, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or willful misconduct on the part
of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or willful misconduct on the part of the Trustee, shall be
full warrant to the Trustee for any action taken or omitted by it under the
provisions of this Indenture upon the faith thereof.
ELIGIBILITY OF TRUSTEE. The Trustee hereunder shall at all times be a
corporation organized and doing business under the laws of the United States of
America or any state or territory thereof or of the District of Columbia or a
corporation or other Person authorized under such laws to exercise corporate
trust powers, having (or whose obligations under this Indenture are guaranteed
by an affiliate having) a combined capital and surplus of at least 50 million
U.S. dollars ($50,000,000.00) and subject to supervision or examination by
federal, state, territorial, or District of Columbia authority. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of the aforesaid supervising or examining authority, then
for the purposes of this Section 6.8 the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent records of condition so published.
The Company may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Company, serve as Trustee.
In case at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section 6.8, the Trustee shall resign immediately in
the manner and with the effect specified in Section 6.9
27
If the Trustee has or shall acquire any "conflicting interest" within the
meaning of Sec.310(b) of the Trust Indenture Act of 1939, the Trustee shall
either eliminate such interest or resign, to the extent and in the manner
described by this Indenture.
RESIGNATION OR REMOVAL OF TRUSTEE
THE TRUSTEE, OR ANY TRUSTEE OR TRUSTEES HEREAFTER APPOINTED, MAY AT ANY
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TIME RESIGN BY GIVING WRITTEN NOTICE OF SUCH RESIGNATION TO THE COMPANY AND BY
--------------------------------------------------------------------------------
MAILING NOTICE THEREOF, AT THE COMPANY'S EXPENSE, TO THE HOLDERS OF THE
--------------------------------------------------------------------------------
DEBENTURES AT THEIR ADDRESSES AS THEY SHALL APPEAR ON THE DEBENTURE REGISTER.
--------------------------------------------------------------------------------
UPON RECEIVING SUCH NOTICE OF RESIGNATION, THE COMPANY SHALL PROMPTLY APPOINT A
--------------------------------------------------------------------------------
SUCCESSOR TRUSTEE OR TRUSTEES BY WRITTEN INSTRUMENT, IN DUPLICATE, EXECUTED BY
--------------------------------------------------------------------------------
ORDER OF ITS BOARD OF DIRECTORS, ONE COPY OF WHICH INSTRUMENT SHALL BE DELIVERED
--------------------------------------------------------------------------------
TO THE RESIGNING TRUSTEE AND ONE COPY TO THE SUCCESSOR TRUSTEE. IF NO SUCCESSOR
--------------------------------------------------------------------------------
TRUSTEE SHALL HAVE BEEN SO APPOINTED AND HAVE ACCEPTED APPOINTMENT WITHIN 30
--------------------------------------------------------------------------------
DAYS AFTER THE MAILING OF SUCH NOTICE OF RESIGNATION TO THE AFFECTED
-------------------------------------------------------------------------------
SECURITYHOLDERS, THE RESIGNING TRUSTEE MAY PETITION ANY COURT OF COMPETENT
--------------------------------------------------------------------------------
JURISDICTION FOR THE APPOINTMENT OF A SUCCESSOR TRUSTEE, OR ANY SECURITYHOLDER
--------------------------------------------------------------------------------
WHO HAS BEEN A BONA FIDE HOLDER OF A DEBENTURE OR DEBENTURES FOR AT LEAST SIX
--------------------------------------------------------------------------------
MONTHS MAY, SUBJECT TO THE PROVISIONS OF SECTION 5.9, ON BEHALF OF HIMSELF AND
--------------------------------------------------------------------------------
ALL OTHERS SIMILARLY SITUATED, PETITION ANY SUCH COURT FOR THE APPOINTMENT OF A
--------------------------------------------------------------------------------
SUCCESSOR TRUSTEE. SUCH COURT MAY THEREUPON, AFTER SUCH NOTICE, IF ANY, AS IT
--------------------------------------------------------------------------------
MAY DEEM PROPER AND PRESCRIBE, APPOINT A SUCCESSOR TRUSTEE.
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IN CASE AT ANY TIME ANY OF THE FOLLOWING SHALL OCCUR --
------------------------------------------------------------------
THE TRUSTEE SHALL FAIL TO COMPLY WITH THE PROVISIONS OF SECTION 6.8
AFTER WRITTEN REQUEST THEREFOR BY THE COMPANY OR BY ANY SECURITYHOLDER
WHO HAS BEEN A BONA FIDE HOLDER OF A DEBENTURE OR DEBENTURES FOR AT
LEAST 6 MONTHS, OR
THE TRUSTEE SHALL CEASE TO BE ELIGIBLE IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 6.8 AND SHALL FAIL TO RESIGN AFTER WRITTEN
REQUEST THEREFOR BY THE COMPANY OR BY ANY SUCH SECURITYHOLDER, OR
THE TRUSTEE SHALL BECOME INCAPABLE OF ACTING, OR SHALL BE ADJUDGED AS
BANKRUPT OR INSOLVENT, OR A RECEIVER OF THE TRUSTEE OR OF ITS PROPERTY
SHALL BE APPOINTED, OR ANY PUBLIC OFFICER SHALL TAKE CHARGE OR CONTROL
OF THE TRUSTEE OR OF ITS PROPERTY OR AFFAIRS FOR THE PURPOSE OF
REHABILITATION, CONSERVATION OR LIQUIDATION,
THEN, IN ANY SUCH CASE, THE COMPANY MAY REMOVE THE TRUSTEE AND APPOINT A
SUCCESSOR TRUSTEE BY WRITTEN INSTRUMENT, IN DUPLICATE, EXECUTED BY ORDER OF THE
BOARD OF DIRECTORS, ONE COPY OF WHICH INSTRUMENT SHALL BE DELIVERED TO THE
TRUSTEE SO REMOVED AND ONE COPY TO THE SUCCESSOR TRUSTEE, OR, SUBJECT TO THE
PROVISIONS OF SECTION 5.9, ANY SECURITYHOLDER WHO HAS BEEN A BONA FIDE HOLDER OF
A DEBENTURE OR DEBENTURES FOR AT LEAST 6 MONTHS MAY, ON BEHALF OF HIMSELF AND
ALL OTHERS SIMILARLY SITUATED, PETITION ANY COURT OF COMPETENT JURISDICTION FOR
THE REMOVAL OF THE TRUSTEE AND THE APPOINTMENT OF A SUCCESSOR TRUSTEE. SUCH
COURT MAY THEREUPON, AFTER SUCH NOTICE, IF ANY, AS IT MAY DEEM PROPER AND
PRESCRIBE, REMOVE THE TRUSTEE AND APPOINT SUCCESSOR TRUSTEE.
UPON PRIOR WRITTEN NOTICE TO THE COMPANY AND THE TRUSTEE, THE HOLDERS OF A
---------------------------------------------------------------------------
MAJORITY IN AGGREGATE PRINCIPAL AMOUNT OF THE DEBENTURES AT THE TIME OUTSTANDING
--------------------------------------------------------------------------------
MAY AT ANY TIME REMOVE THE TRUSTEE AND NOMINATE A SUCCESSOR TRUSTEE, WHICH SHALL
--------------------------------------------------------------------------------
BE DEEMED APPOINTED AS SUCCESSOR TRUSTEE UNLESS WITHIN 10 BUSINESS DAYS AFTER
--------------------------------------------------------------------------------
SUCH NOMINATION THE COMPANY OBJECTS THERETO, IN WHICH CASE, OR IN THE CASE OF A
--------------------------------------------------------------------------------
FAILURE BY SUCH HOLDERS TO NOMINATE A SUCCESSOR TRUSTEE, THE TRUSTEE SO REMOVED
--------------------------------------------------------------------------------
OR ANY SECURITYHOLDER, UPON THE TERMS AND CONDITIONS AND OTHERWISE AS IN
--------------------------------------------------------------------------------
SUBSECTION (A) OF THIS SECTION 6.9 PROVIDED, MAY PETITION ANY COURT OF COMPETENT
--------------------------------------------------------------------------------
JURISDICTION FOR AN APPOINTMENT OF A SUCCESSOR.
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28
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ANY RESIGNATION OR REMOVAL OF THE TRUSTEE AND APPOINTMENT OF A SUCCESSOR
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TRUSTEE PURSUANT TO ANY OF THE PROVISIONS OF THIS SECTION SHALL BECOME EFFECTIVE
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UPON ACCEPTANCE OF APPOINTMENT BY THE SUCCESSOR TRUSTEE AS PROVIDED IN SECTION
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6.10.
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ACCEPTANCE BY SUCCESSOR TRUSTEE. Any successor Trustee appointed as
provided in Section 6.9 shall execute, acknowledge and deliver to the Company
and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, duties and
obligations with respect to the Debentures of its predecessor hereunder, with
like effect as if originally named as Trustee herein; but, nevertheless, on the
written request of the Company or of the successor Trustee, the Trustee ceasing
to act shall, upon payment of any amounts then due it pursuant to the provisions
of Section 6.6, execute and deliver an instrument transferring to such successor
Trustee all the rights and powers of the Trustee so ceasing to act and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee thereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor Trustee
all such rights and powers. Any Trustee ceasing to act shall, nevertheless,
retain a lien upon all property or funds held or collected by such Trustee to
secure any amounts then due it pursuant to the provisions of Section 6.6.
If a successor Trustee is appointed, the Company, the retiring Trustee and
the successor Trustee shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Debentures as to which the predecessor Trustee is not
retiring shall continue to be vested in the predecessor Trustee, and shall add
to or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the Trust hereunder by more than
one Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be Trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustee.
No successor Trustee shall accept appointment as provided in this Section
unless at the time of such acceptance such successor Trustee shall be eligible
under the provisions of Section 6.8.
In no event shall a retiring Trustee be liable for the acts or omissions of
any successor Trustee hereunder.
Upon acceptance of appointment by a successor Trustee as provided in this
Section 6.10, the Company shall mail notice of the succession of such Trustee
hereunder to the holders of Debentures at their addresses as they shall appear
on the Debenture Register. If the Company fails to mail such notice within 10
Business Days after the acceptance of appointment by the successor Trustee, the
successor Trustee shall cause such notice to be mailed at the expense of the
Company.
SUCCESSION BY MERGER, ETC. Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the Trustee
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder without the execution or filing of any paper or any further
act on the part of any of the parties hereto; provided such corporation shall be
--------
otherwise eligible and qualified under this Article.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Debentures shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor Trustee, and deliver such
Debentures so
29
authenticated; and in case at that time any of the Debentures shall not have
been authenticated, any successor to the Trustee may authenticate such
Debentures either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificates shall have the full
force which it is anywhere in the Debentures or in this Indenture provided that
the certificate of the Trustee shall have; provided, however, that the right to
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adopt the certificate of authentication of any predecessor Trustee or
authenticate Debentures in the name of any predecessor Trustee shall apply only
to its successor or successors by merger, conversion or consolidation.
AUTHENTICATING AGENTS. There may be one or more Authenticating Agents
appointed by the Trustee upon the request of the Company with power to act on
its behalf and subject to its direction in the authentication and delivery of
Debentures issued upon exchange or registration of transfer thereof as fully to
all intents and purposes as though any such Authenticating Agent had been
expressly authorized to authenticate and deliver Debentures; provided, however,
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that the Trustee shall have no liability to the Company for any acts or
omissions of the Authenticating Agent with respect to the authentication and
delivery of Debentures. Any such Authenticating Agent shall at all times be a
corporation organized and doing business under the laws of the United States or
of any state or territory thereof or of the District of Columbia authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of at least $50,000,000.00 and being subject to supervision or
examination by federal, state, territorial or District of Columbia authority.
If such corporation publishes reports of condition at least annually pursuant to
law or the requirements of such authority, then for the purposes of this Section
6.12 the combined capital and surplus of such corporation shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect herein specified in this Section.
Any corporation into which any Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of any Authenticating Agent, shall be the successor
of such Authenticating Agent hereunder, if such successor corporation is
otherwise eligible under this Section 6.12 without the execution or filing of
any paper or any further act on the part of the parties hereto or such
Authenticating Agent.
Any Authenticating Agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent with respect to the Debentures
by giving written notice of termination to such Authenticating Agent and to the
Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible under this Section 6.12, the Trustee may, and upon the request of the
Company shall, promptly appoint a successor Authenticating Agent eligible under
this Section 6.12, shall give written notice of such appointment to the Company
and shall mail notice of such appointment to all holders of Debentures as the
names and addresses of such holders appear on the Debenture Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities with
respect to the Debentures of its predecessor hereunder, with like effect as if
originally named as Authenticating Agent herein.
The Company agrees to pay to any Authenticating Agent from time to time
reasonable compensation for its services. Any Authenticating Agent shall have
no responsibility or liability for any action taken by it as such in accordance
with the directions of the Trustee.
30
CONCERNING THE SECURITYHOLDERS
ACTION BY SECURITYHOLDERS. Whenever in this Indenture it is provided
that the holders of a specified percentage in aggregate principal amount of the
Debentures may take any action (including the making of any demand or request,
the giving of any notice, consent or waiver or the taking of any other action)
the fact that at the time of taking any such action the holders of such
specified percentage have joined therein may be evidenced (a) by any instrument
or any number of instruments of similar tenor executed by such Securityholders
in person or by agent or proxy appointed in writing, or (b) by the record of
such holders of Debentures voting in favor thereof at any meeting of such
Securityholders duly called and held in accordance with the provisions of
Article VIII, or (c) by a combination of such instrument or instruments and any
such record of such a meeting of such Securityholders or (d) by any other method
the Trustee deems satisfactory.
If the Company shall solicit from the Securityholders any request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, the Company may, at its option, as evidenced by an Officers'
Certificate, fix in advance a record date for such Debentures for the
determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action or revocation
of the same, but the Company shall have no obligation to do so. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other action or revocation of the same may be given before or
after the record date, but only the Securityholders of record at the close of
business on the record date shall be deemed to be Securityholders for the
purposes of determining whether Securityholders of the requisite proportion of
outstanding Debentures have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other action or
revocation of the same, and for that purpose the outstanding Debentures shall be
computed as of the record date; provided, however, that no such authorization,
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agreement or consent by such Securityholders on the record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than 6 months after the record date.
PROOF OF EXECUTION BY SECURITYHOLDERS. Subject to the provisions of
Section 6.1, 6.2 and 8.5, proof of the execution of any instrument by a
Securityholder or his agent or proxy shall be sufficient if made in accordance
with such reasonable rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The ownership of
Debentures shall be proved by the Debenture Register or by a certificate of the
Debenture registrar. The Trustee may require such additional proof of any
matter referred to in this Section as it shall deem necessary.
The record of any Securityholders' meeting shall be proved in the manner
provided in Section 8.6.
WHO ARE DEEMED ABSOLUTE OWNERS. Prior to due presentment for
registration of transfer of any Debenture, the Company, the Trustee, any
Authenticating Agent, any paying agent, any transfer agent and any Debenture
registrar may deem the Person in whose name such Debenture shall be registered
upon the Debenture Register to be, and may treat him as, the absolute owner of
such Debenture (whether or not such Debenture shall be overdue) for the purpose
of receiving payment of or on account of the principal of, premium, if any, and
interest on such Debenture and for all other purposes; and neither the Company
nor the Trustee nor any Authenticating Agent nor any paying agent nor any
transfer agent nor any Debenture registrar shall be affected by any notice to
the contrary. All such payments so made to any holder for the time being or
upon his order shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any
such Debenture.
31
DEBENTURES OWNED BY COMPANY DEEMED NOT OUTSTANDING. In determining
whether the holders of the requisite aggregate principal amount of Debentures
have concurred in any direction, consent or waiver under this Indenture,
Debentures which are owned by the Company or any other obligor on the Debentures
or by any Person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any other obligor on the
Debentures shall be disregarded and deemed not to be outstanding for the purpose
of any such determination; provided, however, that for the purposes of
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determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver, only Debentures which a Responsible Officer of the
Trustee actually knows are so owned shall be so disregarded. Debentures so
owned which have been pledged in good faith may be regarded as outstanding for
the purposes of this Section 7.4 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such Debentures and that
the pledgee is not the Company or any such other obligor or Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Company or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall be full protection to the Trustee.
REVOCATION OF CONSENTS; FUTURE HOLDERS BOUND. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 7.1, of the
taking of any action by the holders of the percentage in aggregate principal
amount of the Debentures specified in this Indenture in connection with such
action, any holder (in cases where no record date has been set pursuant to
Section 7.1) or any holder as of an applicable record date (in cases where a
record date has been set pursuant to Section 7.1) of a Debenture (or any
Debenture issued in whole or in part in exchange or substitution therefor) the
serial number of which is shown by the evidence to be included in the Debentures
the holders of which have consented to such action may, by filing written notice
with the Trustee at the Principal Office of the Trustee and upon proof of
holding as provided in Section 7.2, revoke such action so far as concerns such
Debenture (or so far as concerns the principal amount represented by any
exchanged or substituted Debenture). Except as aforesaid any such action taken
by the holder of any Debenture shall be conclusive and binding upon such holder
and upon all future holders and owners of such Debenture, and of any Debenture
issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is made
upon such Debenture or any Debenture issued in exchange or substitution
therefor.
SECURITYHOLDERS' MEETINGS
PURPOSES OF MEETINGS. A meeting of Securityholders may be called at any
time and from time to time pursuant to the provisions of this Article VIII for
any of the following purposes:
TO GIVE ANY NOTICE TO THE COMPANY OR TO THE TRUSTEE, OR TO GIVE ANY
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DIRECTIONS TO THE TRUSTEE, OR TO CONSENT TO THE WAIVING OF ANY DEFAULT HEREUNDER
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AND ITS CONSEQUENCES, OR TO TAKE ANY OTHER ACTION AUTHORIZED TO BE TAKEN BY
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SECURITYHOLDERS PURSUANT TO ANY OF THE PROVISIONS OF ARTICLE V;
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TO REMOVE THE TRUSTEE AND NOMINATE A SUCCESSOR TRUSTEE PURSUANT TO THE
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PROVISIONS OF ARTICLE VI;
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TO CONSENT TO THE EXECUTION OF AN INDENTURE OR INDENTURES SUPPLEMENTAL
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HERETO PURSUANT TO THE PROVISIONS OF SECTION 9.2; OR
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TO TAKE ANY OTHER ACTION AUTHORIZED TO BE TAKEN BY OR ON BEHALF OF THE
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HOLDERS OF ANY SPECIFIED AGGREGATE PRINCIPAL AMOUNT OF SUCH DEBENTURES UNDER ANY
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OTHER PROVISION OF THIS INDENTURE OR UNDER APPLICABLE LAW.
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32
CALL OF MEETINGS BY TRUSTEE.The Trustee may at any time call a meeting of
Securityholders to take any action specified in Section8.1, to be held at such
time and at such place as the Trustee shall determine. Notice of every meeting
of the Securityholders, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be
mailed to holders of Debentures affected at their addresses as they shall appear
on the Debentures Register and, if the Company is not a holder of Debentures, to
the Company. Such notice shall be mailed not less than 20 nor more than 180days
prior to the date fixed for the meeting.
CALL OF MEETINGS BY COMPANY OR SECURITYHOLDERS. In case at any time the
Company pursuant to a Board Resolution, or the holders of at least 10% in
aggregate principal amount of the Debentures, as the case may be, then
outstanding, shall have requested the Trustee to call a meeting of
Securityholders, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have
mailed the notice of such meeting within 20 days after receipt of such request,
then the Company or such Securityholders may determine the time and the place
for such meeting and may call such meeting to take any action authorized in
Section 8.1, by mailing notice thereof as provided in Section 8.2.
QUALIFICATIONS FOR VOTING. To be entitled to vote at any meeting of
Securityholders a Person shall (a) be a holder of one or more Debentures with
respect to which the meeting is being held or (b) a Person appointed by an
instrument in writing as proxy by a holder of one or more such Debentures. The
only Persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
REGULATIONS. Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable for
any meeting of Securityholders, in regard to proof of the holding of Debentures
and of the appointment of proxies, and in regard to the appointment and duties
of inspectors of votes, the submission and examination of proxies, certificates
and other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Securityholders as provided in Section 8.3, in which case the
Company or the Securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by majority vote of the meeting.
Subject to the provisions of Section 7.4, at any meeting each holder of
Debentures with respect to which such meeting is being held or proxy therefor
shall be entitled to one vote for each $1,000.00 principal amount of Debentures
held or represented by him; provided, however, that no vote shall be cast or
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counted at any meeting in respect of any Debenture challenged as not outstanding
and ruled by the chairman of the meeting to be not outstanding. The chairman of
the meeting shall have no right to vote other than by virtue of Debentures held
by him or instruments in writing as aforesaid duly designating him as the Person
to vote on behalf of other Securityholders. Any meeting of Securityholders duly
called pursuant to the provisions of Section 8.2 or 8.3 may be adjourned from
time to time by a majority of those present, whether or not constituting a
quorum, and the meeting may be held as so adjourned without further notice.
VOTING. The vote upon any resolution submitted to any meeting of
holders of Debentures with respect to which such meeting is being held shall be
by written ballots on which shall be subscribed the signatures of such holders
or of their representatives by proxy and the serial number or numbers of the
Debentures held or represented by them. The permanent chairman of the meeting
shall appoint two inspectors
33
of votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record in duplicate of the proceedings of each meeting of Securityholders shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more Persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 8.2. The record shall show the serial
numbers of the Debentures voting in favor of or against any resolution. The
record shall be signed and verified by the affidavits of the permanent chairman
and secretary of the meeting and one of the duplicates shall be delivered to the
Company and the other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
QUORUM; ACTIONS. The Persons entitled to vote a majority in principal
amount of the Debentures then outstanding shall constitute a quorum for a
meeting of Securityholders; provided, however, that if any action is to be taken
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at such meeting with respect to a consent, waiver, request, demand, notice,
authorization, direction or other action which may be given by the holders of
not less than a specified percentage in principal amount of the Debentures then
outstanding, the Persons holding or representing such specified percentage in
principal amount of the Debentures then outstanding will constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Securityholders, be
dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the permanent chairman of the meeting prior
to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the permanent chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section 8.2, except that
such notice need be given only once not less than 5 days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
an adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the Debentures then outstanding which shall constitute a
quorum.
Except as limited by the provisos in the first paragraph of Section 9.2,
any resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted by the affirmative vote of
the holders of a majority in principal amount of the Debentures then
outstanding; provided, however, that, except as limited by the provisos in the
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first paragraph of Section 9.2, any resolution with respect to any consent,
waiver, request, demand, notice, authorization, direction or other action which
this Indenture expressly provides may be given by the holders of not less than a
specified percentage in principal amount of the Debentures then outstanding may
be adopted at a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid only by the affirmative vote of the holders of a
not less than such specified percentage in principal amount of the Debentures
then outstanding.
Any resolution passed or decision taken at any meeting of holders of
Debentures duly held in accordance with this Section shall be binding on all the
Securityholders, whether or not present or represented at the meeting.
SUPPLEMENTAL INDENTURES
SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS. The
Company, when authorized by a Board Resolution, and the Trustee may
34
from time to time and at any time enter into an indenture or indentures
supplemental hereto, without the consent of the Securityholders, for one or more
of the following purposes:
TO EVIDENCE THE SUCCESSION OF ANOTHER PERSON TO THE COMPANY, OR SUCCESSIVE
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SUCCESSIONS, AND THE ASSUMPTION BY THE SUCCESSOR PERSON OF THE COVENANTS,
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AGREEMENTS AND OBLIGATIONS OF THE COMPANY, PURSUANT TO ARTICLE XI HEREOF;
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TO ADD TO THE COVENANTS OF THE COMPANY SUCH FURTHER COVENANTS, RESTRICTIONS
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OR CONDITIONS FOR THE PROTECTION OF THE HOLDERS OF DEBENTURES AS THE BOARD OF
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DIRECTORS SHALL CONSIDER TO BE FOR THE PROTECTION OF THE HOLDERS OF SUCH
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DEBENTURES, AND TO MAKE THE OCCURRENCE, OR THE OCCURRENCE AND CONTINUANCE, OF A
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DEFAULT IN ANY OF SUCH ADDITIONAL COVENANTS, RESTRICTIONS OR CONDITIONS A
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DEFAULT OR AN EVENT OF DEFAULT PERMITTING THE ENFORCEMENT OF ALL OR ANY OF THE
--------------------------------------------------------------------------------
SEVERAL REMEDIES PROVIDED IN THIS INDENTURE AS HEREIN SET FORTH; PROVIDED,
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HOWEVER, THAT IN RESPECT OF ANY SUCH ADDITIONAL COVENANT RESTRICTION OR
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CONDITION SUCH SUPPLEMENTAL INDENTURE MAY PROVIDE FOR A PARTICULAR PERIOD OF
--------------------------------------------------------------------------------
GRACE AFTER DEFAULT (WHICH PERIOD MAY BE SHORTER OR LONGER THAN THAT ALLOWED IN
--------------------------------------------------------------------------------
THE CASE OF OTHER DEFAULTS) OR MAY PROVIDE FOR AN IMMEDIATE ENFORCEMENT UPON
--------------------------------------------------------------------------------
SUCH DEFAULT OR MAY LIMIT THE REMEDIES AVAILABLE TO THE TRUSTEE UPON SUCH
--------------------------------------------------------------------------------
DEFAULT;
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TO CURE ANY AMBIGUITY OR TO CORRECT OR SUPPLEMENT ANY PROVISION CONTAINED
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HEREIN OR IN ANY SUPPLEMENTAL INDENTURE WHICH MAY BE DEFECTIVE OR INCONSISTENT
--------------------------------------------------------------------------------
WITH ANY OTHER PROVISION CONTAINED HEREIN OR IN ANY SUPPLEMENTAL INDENTURE, OR
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TO MAKE SUCH OTHER PROVISIONS IN REGARD TO MATTERS OR QUESTIONS ARISING UNDER
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THIS INDENTURE; PROVIDED THAT ANY SUCH ACTION SHALL NOT MATERIALLY ADVERSELY
--------------------------------------------------------------------------------
AFFECT THE INTERESTS OF THE HOLDERS OF THE DEBENTURES;
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TO ADD TO, DELETE FROM, OR REVISE THE TERMS OF DEBENTURES, INCLUDING,
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WITHOUT LIMITATION, ANY TERMS RELATING TO THE ISSUANCE, EXCHANGE, REGISTRATION
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OR TRANSFER OF DEBENTURES, INCLUDING TO PROVIDE FOR TRANSFER PROCEDURES AND
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RESTRICTIONS SUBSTANTIALLY SIMILAR TO THOSE APPLICABLE TO THE CAPITAL SECURITIES
--------------------------------------------------------------------------------
AS REQUIRED BY SECTION 2.5 (FOR PURPOSES OF ASSURING THAT NO REGISTRATION OF
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DEBENTURES IS REQUIRED UNDER THE SECURITIES ACT); PROVIDED, HOWEVER, THAT ANY
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SUCH ACTION SHALL NOT ADVERSELY AFFECT THE INTERESTS OF THE HOLDERS OF THE
--------------------------------------------------------------------------------
DEBENTURES THEN OUTSTANDING (IT BEING UNDERSTOOD, FOR PURPOSES OF THIS PROVISO,
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THAT TRANSFER RESTRICTIONS ON DEBENTURES SUBSTANTIALLY SIMILAR TO THOSE THAT
--------------------------------------------------------------------------------
WERE APPLICABLE TO CAPITAL SECURITIES SHALL NOT BE DEEMED TO MATERIALLY
--------------------------------------------------------------------------------
ADVERSELY AFFECT THE HOLDERS OF THE DEBENTURES);
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TO EVIDENCE AND PROVIDE FOR THE ACCEPTANCE OF APPOINTMENT HEREUNDER BY A
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SUCCESSOR TRUSTEE WITH RESPECT TO THE DEBENTURES AND TO ADD TO OR CHANGE ANY OF
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THE PROVISIONS OF THIS INDENTURE AS SHALL BE NECESSARY TO PROVIDE FOR OR
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FACILITATE THE ADMINISTRATION OF THE TRUSTS HEREUNDER BY MORE THAN ONE TRUSTEE;
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TO MAKE ANY CHANGE (OTHER THAN AS ELSEWHERE PROVIDED IN THIS PARAGRAPH)
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THAT DOES NOT ADVERSELY AFFECT THE RIGHTS OF ANY SECURITYHOLDER IN ANY MATERIAL
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RESPECT; OR
------------
TO PROVIDE FOR THE ISSUANCE OF AND ESTABLISH THE FORM AND TERMS AND
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CONDITIONS OF THE DEBENTURES, TO ESTABLISH THE FORM OF ANY CERTIFICATIONS
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REQUIRED TO BE FURNISHED PURSUANT TO THE TERMS OF THIS INDENTURE OR THE
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DEBENTURES, OR TO ADD TO THE RIGHTS OF THE HOLDERS OF DEBENTURES.
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The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
35
Any supplemental indenture authorized by the provisions of this Section 9.1
may be executed by the Company and the Trustee without the consent of the
holders of any of the Debentures at the time outstanding, notwithstanding any of
the provisions of Section 9.2.
SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS. With the
consent (evidenced as provided in Section 7.1) of the holders of not less than a
majority in aggregate principal amount of the Debentures at the time outstanding
affected by such supplemental indenture (voting as a class), the Company, when
authorized by a Board Resolution, and the Trustee may from time to time and at
any time enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Debentures; provided,
--------
however, that no such supplemental indenture shall without the consent of the
-------
holders of each Debenture then outstanding and affected thereby (i) change the
fixed maturity of any Debenture, or reduce the principal amount thereof or any
premium thereon, or reduce the rate or extend the time of payment of interest
thereon, or reduce any amount payable on redemption thereof or make the
principal thereof or any interest or premium thereon payable in any coin or
currency other than that provided in the Debentures, or impair or affect the
right of any Securityholder to institute suit for payment thereof or impair the
right of repayment, if any, at the option of the holder, or (ii) reduce the
aforesaid percentage of Debentures the holders of which are required to consent
to any such supplemental indenture; provided further, however, that if the
-------- ------- -------
Debentures are held by a trust or a trustee of such trust, such supplemental
indenture shall not be effective until the holders of a majority in Liquidation
Amount of Trust Securities shall have consented to such supplemental indenture;
provided further, however, that if the consent of the Securityholder of each
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outstanding Debenture is required, such supplemental indenture shall not be
effective until each holder of the Trust Securities shall have consented to such
supplemental indenture.
Upon the request of the Company accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Securityholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Trustee
shall transmit by mail, first class postage prepaid, a notice, prepared by the
Company, setting forth in general terms the substance of such supplemental
indenture, to the Securityholders as their names and addresses appear upon the
Debenture Register. Any failure of the Trustee to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Debentures shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
36
NOTATION ON DEBENTURES. Debentures authenticated and delivered after
the execution of any supplemental indenture pursuant to the provisions of this
Article IX may bear a notation as to any matter provided for in such
supplemental indenture. If the Company or the Trustee shall so determine, new
Debentures so modified as to conform, in the opinion of the Board of Directors
of the Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee or the Authenticating Agent and delivered in
exchange for the Debentures then outstanding.
EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED TO
TRUSTEE. The Trustee, subject to the provisions of Sections 6.1 and 6.2,
shall, in addition to the documents required by Section 14.6, receive an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements
of this Article IX. The Trustee shall receive an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant to this
Article IX is authorized or permitted by, and conforms to, the terms of this
Article IX and that it is proper for the Trustee under the provisions of this
Article IX to join in the execution thereof.
REDEMPTION OF SECURITIES
OPTIONAL REDEMPTION. The Company shall have the right (subject to the
receipt by the Company of prior approval (i) if the Company is a bank holding
company, from the Federal Reserve, if then required under applicable capital
guidelines or policies of the Federal Reserve or (ii) if the Company is a
savings and loan holding company, from the OTS, if then required under
applicable capital guidelines or policies of the OTS) to redeem the Debentures,
in whole or in part, but in all cases in a principal amount with integral
multiples of $1,000.00, on any March 26, June 26, September 26 or December 26 on
or after March 26, 2008 (the "Redemption Date"), at the Redemption Price.
----------------
SPECIAL EVENT REDEMPTION. If a Special Event shall occur and be
continuing, the Company shall have the right (subject to the receipt by the
Company of prior approval (i) if the Company is a bank holding company, from the
Federal Reserve, if then required under applicable capital guidelines or
policies of the Federal Reserve or (ii) if the Company is a savings and loan
holding company, from the OTS, if then required under applicable capital
guidelines or policies of the OTS) to redeem the Debentures in whole, but not in
part, at any Interest Payment Date, within 120 days following the occurrence of
such Special Event (the "Special Redemption Date") at the Special Redemption
-----------------------
Price.
NOTICE OF REDEMPTION; SELECTION OF DEBENTURES. In case the Company
shall desire to exercise the right to redeem all, or, as the case may be, any
part of the Debentures, it shall cause to be mailed a notice of such redemption
at least 30 and not more than 60 days prior to the Redemption Date or the
Special Redemption Date to the holders of Debentures so to be redeemed as a
whole or in part at their last addresses as the same appear on the Debenture
Register. Such mailing shall be by first class mail. The notice if mailed in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice. In any case, failure to
give such notice by mail or any defect in the notice to the holder of any
Debenture designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Debenture.
Each such notice of redemption shall specify the CUSIP number, if any, of
the Debentures to be redeemed, the Redemption Date or the Special Redemption
Date, as applicable, the Redemption Price or the Special Redemption Price, as
applicable, at which Debentures are to be redeemed, the place or places of
37
payment, that payment will be made upon presentation and surrender of such
Debentures, that interest accrued to the date fixed for redemption will be paid
as specified in said notice, and that on and after said date interest thereon or
on the portions thereof to be redeemed will cease to accrue. If less than all
the Debentures are to be redeemed the notice of redemption shall specify the
numbers of the Debentures to be redeemed. In case the Debentures are to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Debenture, a new Debenture or
Debentures in principal amount equal to the unredeemed portion thereof will be
issued.
Prior to 10:00 a.m. New York City time on the Redemption Date or Special
Redemption Date, as applicable, the Company will deposit with the Trustee or
with one or more paying agents an amount of money sufficient to redeem on the
Redemption Date or the Special Redemption Date, as applicable, all the
Debentures so called for redemption at the appropriate Redemption Price or
Special Redemption Price.
If all, or less than all, the Debentures are to be redeemed, the Company
will give the Trustee notice not less than 45 nor more than 60 days,
respectively, prior to the Redemption Date or Special Redemption Date, as
applicable, as to the aggregate principal amount of Debentures to be redeemed
and the Trustee shall select, in such manner as in its sole discretion it shall
deem appropriate and fair, the Debentures or portions thereof (in integral
multiples of $1,000.00) to be redeemed.
PAYMENT OF DEBENTURES CALLED FOR REDEMPTION. If notice of redemption
has been given as provided in Section 10.3, the Debentures or portions of
Debentures with respect to which such notice has been given shall become due and
payable on the Redemption Date or Special Redemption Date, as applicable, and at
the place or places stated in such notice at the applicable Redemption Price or
Special Redemption Price and on and after said date (unless the Company shall
default in the payment of such Debentures at the Redemption Price or Special
Redemption Price, as applicable) interest on the Debentures or portions of
Debentures so called for redemption shall cease to accrue. On presentation and
surrender of such Debentures at a place of payment specified in said notice,
such Debentures or the specified portions thereof shall be paid and redeemed by
the Company at the applicable Redemption Price or Special Redemption Price.
Upon presentation of any Debenture redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the holder thereof, at the expense of the Company, a new Debenture or Debentures
of authorized denominations, in principal amount equal to the unredeemed portion
of the Debenture so presented.
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
COMPANY MAY CONSOLIDATE, ETC., ON CERTAIN TERMS. Nothing contained in
this Indenture or in the Debentures shall prevent any consolidation or merger of
the Company with or into any other Person (whether or not affiliated with the
Company) or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance, transfer or other disposition of the property or capital stock of
the Company or its successor or successors as an entirety, or substantially as
an entirety, to any other Person (whether or not affiliated with the Company, or
its successor or successors) authorized to acquire and operate the same;
provided, however, that the Company hereby covenants and agrees that, upon any
-------- -------
such consolidation, merger (where the Company is not the surviving corporation),
sale, conveyance, transfer or other disposition, the due and punctual payment of
the principal of (and premium, if any) and interest on all of the Debentures in
accordance with their terms, according to their tenor, and the due and punctual
performance and
38
observance of all the covenants and conditions of this Indenture to be kept or
performed by the Company, shall be expressly assumed by supplemental indenture
satisfactory in form to the Trustee executed and delivered to the Trustee by the
entity formed by such consolidation, or into which the Company shall have been
merged, or by the entity which shall have acquired such property or capital
stock.
SUCCESSOR ENTITY TO BE SUBSTITUTED. In case of any such consolidation,
merger, sale, conveyance, transfer or other disposition and upon the assumption
by the successor entity, by supplemental indenture, executed and delivered to
the Trustee and satisfactory in form to the Trustee, of the due and punctual
payment of the principal of and premium, if any, and interest on all of the
Debentures and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed or observed by the
Company, such successor entity shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the Company, and
thereupon the predecessor entity shall be relieved of any further liability or
obligation hereunder or upon the Debentures. Such successor entity thereupon
may cause to be signed, and may issue in its own name, any or all of the
Debentures issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee or the Authenticating Agent; and, upon
the order of such successor entity instead of the Company and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee or
the Authenticating Agent shall authenticate and deliver any Debentures which
previously shall have been signed and delivered by the officers of the Company,
to the Trustee or the Authenticating Agent for authentication, and any
Debentures which such successor entity thereafter shall cause to be signed and
delivered to the Trustee or the Authenticating Agent for that purpose. All the
Debentures so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Debentures theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Debentures had
been issued at the date of the execution hereof.
OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall receive, in addition to the Opinion of
Counsel required by Section 9.5, an Opinion of Counsel as conclusive evidence
that any consolidation, merger, sale, conveyance, transfer or other disposition,
and any assumption, permitted or required by the terms of this Article XI
complies with the provisions of this Article XI.
SATISFACTION AND DISCHARGE OF INDENTURE
DISCHARGE OF INDENTURE. When
(a) the Company shall deliver to the Trustee for cancellation all
Debentures theretofore authenticated (other than any Debentures which
shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.6) and not theretofore
canceled, or
(b) all the Debentures not theretofore canceled or delivered to the
Trustee for cancellation shall have become due and payable, or are by
their terms to become due and payable within 1 year or are to be
called for redemption within 1 year under arrangements satisfactory to
the Trustee for the giving of notice of redemption, and the Company
shall deposit with the Trustee, in trust, funds, which shall be
immediately due and payable, sufficient to pay at maturity or upon
redemption all of the Debentures (other than any Debentures which
shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.6) not theretofore canceled
or delivered to the Trustee for cancellation, including principal and
premium, if any, and interest due or to become due to such date of
maturity or redemption date, as the case may be, but excluding,
however, the amount of any moneys for the payment
39
of principal of, and premium, if any, or interest on the Debentures
(1) theretofore repaid to the Company in accordance with the
provisions of Section 12.4, or (2) paid to any state or to the
District of Columbia pursuant to its unclaimed property or similar
laws,
and if in the case of either clause (a) or clause (b) the Company shall also pay
or cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect except for the provisions of
Sections 2.5, 2.6, 2.8, 3.1, 3.2, 3.4, 6.6, 6.8, 6.9 and 12.4 hereof shall
survive until such Debentures shall mature and be paid. Thereafter, Sections
6.6 and 12.4 shall survive, and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with, and at the cost and
expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture. The Company agrees to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred by the Trustee in connection with this Indenture or the Debentures.
DEPOSITED MONEYS TO BE HELD IN TRUST BY TRUSTEE. Subject to the
provisions of Section 12.4, all moneys deposited with the Trustee pursuant to
Section 12.1 shall be held in trust in a non-interest bearing account and
applied by it to the payment, either directly or through any paying agent
(including the Company if acting as its own paying agent), to the holders of the
particular Debentures for the payment of which such moneys have been deposited
with the Trustee, of all sums due and to become due thereon for principal, and
premium, if any, and interest.
PAYING AGENT TO REPAY MONEYS HELD. Upon the satisfaction and discharge
of this Indenture all moneys then held by any paying agent of the Debentures
(other than the Trustee) shall, upon demand of the Company, be repaid to it or
paid to the Trustee, and thereupon such paying agent shall be released from all
further liability with respect to such moneys.
RETURN OF UNCLAIMED MONEYS. Any moneys deposited with or paid to the
Trustee or any paying agent for payment of the principal of, and premium, if
any, or interest on Debentures and not applied but remaining unclaimed by the
holders of Debentures for 2 years after the date upon which the principal of,
and premium, if any, or interest on such Debentures, as the case may be, shall
have become due and payable, shall, subject to applicable escheatment laws, be
repaid to the Company by the Trustee or such paying agent on written demand; and
the holder of any of the Debentures shall thereafter look only to the Company
for any payment which such holder may be entitled to collect, and all liability
of the Trustee or such paying agent with respect to such moneys shall thereupon
cease.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS
INDENTURE AND DEBENTURES SOLELY CORPORATE OBLIGATIONS. No recourse for
the payment of the principal of or premium, if any, or interest on any
Debenture, or for any claim based thereon or otherwise in respect thereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
in this Indenture or in any supplemental indenture, or in any such Debenture, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, employee, officer or director, as such,
past, present or future, of the Company or of any successor Person of the
Company, either directly or through the Company or any successor Person of the
Company, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise, it being expressly
understood that all such liability is hereby expressly
40
waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issue of the Debentures.
MISCELLANEOUS PROVISIONS
SUCCESSORS. All the covenants, stipulations, promises and agreements of
the Company in this Indenture shall bind its successors and assigns whether so
expressed or not.
OFFICIAL ACTS BY SUCCESSOR ENTITY. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by
any board, committee or officer of the Company shall and may be done and
performed with like force and effect by the like board, committee, officer or
other authorized Person of any entity that shall at the time be the lawful
successor of the Company.
SURRENDER OF COMPANY POWERS. The Company by instrument in writing
executed by authority of at least 2/3 (two-thirds) of its Board of Directors and
delivered to the Trustee may surrender any of the powers reserved to the Company
and thereupon such power so surrendered shall terminate both as to the Company,
and as to any permitted successor.
ADDRESSES FOR NOTICES, ETC. Any notice, consent, direction, request,
authorization, waiver or demand which by any provision of this Indenture is
required or permitted to be given, made, furnished or served by the Trustee or
by the Securityholders on or to the Company may be given or served in writing by
being deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company, with the
Trustee for the purpose) to the Company, ▇▇▇▇ #▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. Any notice, consent, direction, request,
authorization, waiver or demand by any Securityholder or the Company to or upon
the Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made in writing at the office of the Trustee, addressed to
the Trustee, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Square, Hartford, Connecticut 06103
Attention: Vice President, Corporate Trust Services Division, with a copy to the
Trustee, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇ ▇. ▇▇▇▇▇, Corporate Trust Services Division. Any notice, consent,
direction, request, authorization, waiver or demand on or to any Securityholder
shall be deemed to have been sufficiently given or made, for all purposes, if
given or made in writing at the address set forth in the Debenture Register.
GOVERNING LAW. This Indenture and each Debenture shall be deemed to be
a contract made under the law of the State of New York, and for all purposes
shall be governed by and construed in accordance with the law of said State,
without regard to conflict of laws principles thereof.
EVIDENCE OF COMPLIANCE WITH CONDITIONS PRECEDENT. Upon any application
or demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that in the opinion of the signers all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (1) a statement that the person making such
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such
41
certificate or opinion are based; (3) a statement that, in the opinion of such
person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not in
the opinion of such person, such condition or covenant has been complied with.
NON-BUSINESS DAYS. In any case where the date of payment of interest on
or principal of the Debentures will be a day that is not a Business Day, the
payment of such interest on or principal of the Debentures need not be made on
such date but may be made on the next succeeding Business Day, except that, if
such Business Day is in the next succeeding calendar year, such payment shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on the original date of payment, and no interest shall
accrue for the period from and after such date.
TABLE OF CONTENTS, HEADINGS, ETC. The table of contents and the titles
and headings of the articles and sections of this Indenture have been inserted
for convenience of reference only, are not to be considered a part hereof, and
shall in no way modify or restrict any of the terms or provisions hereof.
EXECUTION IN COUNTERPARTS. This Indenture may be executed in any number
of counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
SEPARABILITY. In case any one or more of the provisions contained in
this Indenture or in the Debentures shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Indenture or of
such Debentures, but this Indenture and such Debentures shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
herein or therein.
ASSIGNMENT. The Company will have the right at all times to assign any
of its rights or obligations under this Indenture to a direct or indirect wholly
owned Subsidiary of the Company, provided that, in the event of any such
assignment, the Company will remain liable for all such obligations. Subject to
the foregoing, this Indenture is binding upon and inures to the benefit of the
parties hereto and their respective successors and assigns. This Indenture may
not otherwise be assigned by the parties hereto.
ACKNOWLEDGMENT OF RIGHTS. The Company agrees that, with respect to any
Debentures held by the Trust or the Institutional Trustee of the Trust, if the
Institutional Trustee of the Trust fails to enforce its rights under this
Indenture as the holder of Debentures held as the assets of such Trust after the
holders of a majority in Liquidation Amount of the Capital Securities of such
Trust have so directed such Institutional Trustee, a holder of record of such
Capital Securities may, to the fullest extent permitted by law, institute legal
proceedings directly against the Company to enforce such Institutional Trustee's
rights under this Indenture without first instituting any legal proceedings
against such trustee or any other Person. Notwithstanding the foregoing, if an
Event of Default has occurred and is continuing and such event is attributable
to the failure of the Company to pay interest (or premium, if any) or principal
on the Debentures on the date such interest (or premium, if any) or principal is
otherwise payable (or in the case of redemption, on the redemption date), the
Company agrees that a holder of record of Capital Securities of the Trust may
directly institute a proceeding against the Company for enforcement of payment
to such holder directly of the principal of (or premium, if any) or interest on
the Debentures having an aggregate principal amount equal to the aggregate
Liquidation Amount of the Capital Securities of such holder on or after the
respective due date specified in the Debentures.
42
SUBORDINATION OF DEBENTURES
AGREEMENT TO SUBORDINATE. The Company covenants and agrees, and each
holder of Debentures by such Securityholder's acceptance thereof likewise
covenants and agrees, that all Debentures shall be issued subject to the
provisions of this Article XV; and each holder of a Debenture, whether upon
original issue or upon transfer or assignment thereof, accepts and agrees to be
bound by such provisions.
The payment by the Company of the principal of, and premium, if any, and
interest on all Debentures shall, to the extent and in the manner hereinafter
set forth, be subordinated and junior in right of payment to the prior payment
in full of all Senior Indebtedness of the Company, whether outstanding at the
date of this Indenture or thereafter incurred.
No provision of this Article XV shall prevent the occurrence of any default
or Event of Default hereunder.
DEFAULT ON SENIOR INDEBTEDNESS. In the event and during the
continuation of any default by the Company in the payment of principal, premium,
interest or any other payment due on any Senior Indebtedness of the Company
following any grace period, or in the event that the maturity of any Senior
Indebtedness of the Company has been accelerated because of a default and such
acceleration has not been rescinded or canceled and such Senior Indebtedness has
not been paid in full, then, in either case, no payment shall be made by the
Company with respect to the principal (including redemption) of, or premium, if
any, or interest on the Debentures.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 15.2, such payment shall, subject to Section 15.7, be
held in trust for the benefit of, and shall be paid over or delivered to, the
holders of Senior Indebtedness or their respective representatives, or to the
trustee or trustees under any indenture pursuant to which any of such Senior
Indebtedness may have been issued, as their respective interests may appear, but
only to the extent that the holders of the Senior Indebtedness (or their
representative or representatives or a trustee) notify the Trustee in writing
within 90 days of such payment of the amounts then due and owing on the Senior
Indebtedness and only the amounts specified in such notice to the Trustee shall
be paid to the holders of Senior Indebtedness.
LIQUIDATION, DISSOLUTION, BANKRUPTCY. Upon any payment by the Company
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to creditors upon any dissolution or winding-up or
liquidation or reorganization of the Company, whether voluntary or involuntary
or in bankruptcy, insolvency, receivership or other proceedings, all amounts due
upon all Senior Indebtedness of the Company shall first be paid in full, or
payment thereof provided for in money in accordance with its terms, before any
payment is made by the Company, on account of the principal (and premium, if
any) or interest on the Debentures. Upon any such dissolution or winding-up or
liquidation or reorganization, any payment by the Company, or distribution of
assets of the Company of any kind or character, whether in cash, property or
securities, to which the Securityholders or the Trustee would be entitled to
receive from the Company, except for the provisions of this Article XV, shall be
paid by the Company, or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Securityholders or by the Trustee under this Indenture if received by them or
it, directly to the holders of Senior Indebtedness (pro rata to such holders on
the basis of the respective amounts of Senior
43
Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay such Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, before any payment or distribution is made
to the Securityholders or to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, prohibited by the foregoing, shall be received by the
Trustee before all Senior Indebtedness is paid in full, or provision is made for
such payment in money in accordance with its terms, such payment or distribution
shall be held in trust for the benefit of and shall be paid over or delivered to
the holders of such Senior Indebtedness or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing such Senior Indebtedness may have been issued,
as their respective interests may appear, as calculated by the Company, for
application to the payment of all Senior Indebtedness, remaining unpaid to the
extent necessary to pay such Senior Indebtedness in full in money in accordance
with its terms, after giving effect to any concurrent payment or distribution to
or for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article XV, the words "cash, property or securities"
shall not be deemed to include shares of stock of the Company as reorganized or
readjusted, or securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment, the payment of which is
subordinated at least to the extent provided in this Article XV with respect to
the Debentures to the payment of all Senior Indebtedness, that may at the time
be outstanding, provided that (i) such Senior Indebtedness is assumed by the new
corporation, if any, resulting from any such reorganization or readjustment, and
(ii) the rights of the holders of such Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another
corporation or the liquidation or dissolution of the Company following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided for in
Article XI of this Indenture shall not be deemed a dissolution, winding-up,
liquidation or reorganization for the purposes of this Section if such other
corporation shall, as a part of such consolidation, merger, conveyance or
transfer, comply with the conditions stated in Article XI of this Indenture.
Nothing in Section 15.2 or in this Section shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.6 of this Indenture.
SUBROGATION. Subject to the payment in full of all Senior Indebtedness,
the Securityholders shall be subrogated to the rights of the holders of such
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company, applicable to such Senior Indebtedness until the
principal of (and premium, if any) and interest on the Debentures shall be paid
in full. For the purposes of such subrogation, no payments or distributions to
the holders of such Senior Indebtedness of any cash, property or securities to
which the Securityholders or the Trustee would be entitled except for the
provisions of this Article XV, and no payment over pursuant to the provisions of
this Article XV to or for the benefit of the holders of such Senior Indebtedness
by Securityholders or the Trustee, shall, as between the Company, its creditors
other than holders of Senior Indebtedness of the Company, and the holders of the
Debentures be deemed to be a payment or distribution by the Company to or on
account of such Senior Indebtedness. It is understood that the provisions of
this Article XV are and are intended solely for the purposes of defining the
relative rights of the holders of the Securities, on the one hand, and the
holders of such Senior Indebtedness, on the other hand.
Nothing contained in this Article XV or elsewhere in this Indenture or in
the Debentures is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the holders of the
Debentures, the obligation of the Company, which is absolute and unconditional,
to pay to the holders of the Debentures the principal of (and premium, if any)
and interest on the Debentures as and when
44
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the holders of the Debentures
and creditors of the Company, other than the holders of Senior Indebtedness, nor
shall anything herein or therein prevent the Trustee or the holder of any
Debenture from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article XV of the holders of such Senior Indebtedness in respect of cash,
property or securities of the Company, received upon the exercise of any such
remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article XV, the Trustee, subject to the provisions of Article VI of this
Indenture, and the Securityholders shall be entitled to conclusively rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidation trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Securityholders, for the purposes of ascertaining the Persons
entitled to participate in such distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article XV.
TRUSTEE TO EFFECTUATE SUBORDINATION. Each Securityholder by such
Securityholder's acceptance thereof authorizes and directs the Trustee on such
Securityholder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article XV and appoints the
Trustee such Securityholder's attorney-in-fact for any and all such purposes.
NOTICE BY THE COMPANY. The Company shall give prompt written notice to
a Responsible Officer of the Trustee at the Principal Office of the Trustee of
any fact known to the Company that would prohibit the making of any payment of
monies to or by the Trustee in respect of the Debentures pursuant to the
provisions of this Article XV. Notwithstanding the provisions of this Article
XV or any other provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts that would prohibit the making of
any payment of monies to or by the Trustee in respect of the Debentures pursuant
to the provisions of this Article XV, unless and until a Responsible Officer of
the Trustee at the Principal Office of the Trustee shall have received written
notice thereof from the Company or a holder or holders of Senior Indebtedness or
from any trustee therefor; and before the receipt of any such written notice,
the Trustee, subject to the provisions of Article VI of this Indenture, shall be
entitled in all respects to assume that no such facts exist; provided, however,
-------- -------
that if the Trustee shall not have received the notice provided for in this
Section at least 2 Business Days prior to the date upon which by the terms
hereof any money may become payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest on
any Debenture), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purposes for which they were received, and shall not be
affected by any notice to the contrary that may be received by it within 2
Business Days prior to such date.
The Trustee, subject to the provisions of Article VI of this Indenture,
shall be entitled to conclusively rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness (or a
trustee or representative on behalf of such holder), to establish that such
notice has been given by a holder of such Senior Indebtedness or a trustee or
representative on behalf of any such holder or holders. In the event that the
Trustee determines in good faith that further evidence is required with respect
to the right of any Person as a holder of such Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XV, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Senior Indebtedness held by
such Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the
45
rights of such Person under this Article XV, and, if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR INDEBTEDNESS. The Trustee in
its individual capacity shall be entitled to all the rights set forth in this
Article XV in respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article XV, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into this Indenture against the Trustee. The Trustee shall not be deemed
to owe any fiduciary duty to the holders of such Senior Indebtedness and,
subject to the provisions of Article VI of this Indenture, the Trustee shall not
be liable to any holder of such Senior Indebtedness if it shall pay over or
deliver to Securityholders, the Company or any other Person money or assets to
which any holder of such Senior Indebtedness shall be entitled by virtue of this
Article XV or otherwise.
Nothing in this Article XV shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.6.
SUBORDINATION MAY NOT BE IMPAIRED. No right of any present or future
holder of any Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company, or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company, with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Securityholders, without
incurring responsibility to the Securityholders and without impairing or
releasing the subordination provided in this Article XV or the obligations
hereunder of the holders of the Debentures to the holders of such Senior
Indebtedness, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, such
Senior Indebtedness, or otherwise amend or supplement in any manner such Senior
Indebtedness or any instrument evidencing the same or any agreement under which
such Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing such
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of such Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company, and any other Person.
Signatures appear on the following page
46
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed by their respective officers thereunto duly authorized, as of the
day and year first above written.
COMMUNITY CAPITAL BANCSHARES, INC.
By /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: CFO
U. S. BANK NATIONAL ASSOCIATION, as Trustee
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
47
EXHIBIT A
FORM OF FLOATING RATE JUNIOR SUBORDINATED DEFERRABLE INTEREST DEBENTURE
[FORM OF FACE OF SECURITY]
THIS SECURITY IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED BY
THE UNITED STATES OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE
FEDERAL DEPOSIT INSURANCE CORPORATION.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAW. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY ONLY (A) TO THE COMPANY, (B) PURSUANT TO A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE
WITH RULE 144A, (D) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (A) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL
ACCREDITED INVESTOR, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER TO REQUIRE THE DELIVERY OF AN OPINION
OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN
ACCORDANCE WITH THE INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES,
REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE") (EACH
A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON
OF ANY PLAN'S INVESTMENT IN THE ENTITY, AND NO PERSON INVESTING "PLAN ASSETS" OF
ANY PLAN MAY ACQUIRE OR HOLD THE SECURITIES OR ANY INTEREST THEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR EXEMPTIVE RELIEF AVAILABLE UNDER U.S.
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60, 91-38,
90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND HOLDING OF
THIS SECURITY IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION 4975 OF THE
CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY
48
PURCHASER OR HOLDER OF THE SECURITIES OR ANY INTEREST THEREIN WILL BE DEEMED TO
HAVE REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT
AN EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN
TO WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON
ACTING ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR
ENTITY USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH
PURCHASE, OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION
UNDER SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO
APPLICABLE STATUTORY OR ADMINISTRATIVE EXEMPTION.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000.00 AND MULTIPLES OF
$1,000.00 IN EXCESS THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK
HAVING AN AGGREGATE PRINCIPAL AMOUNT OF LESS THAN $100,000.00 SHALL BE DEEMED TO
BE VOID AND OF NO LEGAL EFFECT WHATSOEVER.
THE HOLDER OF THIS SECURITY AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY
THE INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING
RESTRICTIONS.
Floating Rate Junior Subordinated Deferrable Interest Debenture
of
Community Capital Bancshares, Inc.
March 26, 2003
Community Capital Bancshares, Inc., a Georgia corporation (the "Company"
which term includes any successor Person under the Indenture hereinafter
referred to), for value received promises to pay to U. S. Bank National
Association, not in its individual capacity but solely as Institutional Trustee
for Community Capital Statutory Trust I (the "Holder") or registered assigns,
the principal sum of four million one hundred twenty-four thousand dollars
($4,124,000.00) on March 26, 2033, and to pay interest on said principal sum
from March 26, 2003, or from the most recent interest payment date (each such
date, an "Interest Payment Date") to which interest has been paid or duly
provided for, quarterly (subject to deferral as set forth herein) in arrears on
March 26, June 26, September 26 and December 26 of each year commencing on June
26, 2003, at an annual rate equal to 4.41063% beginning on (and including) the
date of original issuance and ending on (but excluding) June 26, 2003 and at an
annual rate for each successive period beginning on (and including) June 26,
2003, and each succeeding Interest Payment Date, and ending on (but excluding)
the next succeeding Interest Payment Date (each a "Distribution Period"), equal
to 3-Month LIBOR, determined as described below, plus 3.15% (the "Coupon Rate");
provided, however, that prior to March 26, 2008, the Coupon Rate shall not
-------- -------
exceed 11.75%, applied to the principal amount hereof, until the principal
hereof is paid or duly provided for or made available for payment, and on any
overdue principal and (without duplication and to the extent that payment of
such interest is enforceable under applicable law) on any overdue installment of
interest (including Additional Interest) at the Interest Rate in effect for each
applicable period, compounded quarterly, from the dates such amounts are due
until they are paid or made available for payment. The amount of interest
payable for any period will be computed on the basis of the actual number of
days in the Distribution Period
49
concerned divided by 360. In the event that any date on which interest is
payable on this Debenture is not a Business Day, then a payment of the interest
payable on such date will be made on the next succeeding day which is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on the date the payment was originally
payable. The interest installment so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Debenture (or one or more Predecessor
Securities) is registered at the close of business on the regular record date
for such interest installment, which shall be fifteen days prior to the day on
which the relevant Interest Payment Date occurs. Any such interest installment
not so punctually paid or duly provided for shall forthwith cease to be payable
to the Holder on such regular record date and may be paid to the Person in whose
name this Debenture (or one or more Predecessor Securities) is registered at the
close of business on a special record date.
"3-Month LIBOR" as used herein, means the London interbank offered interest
rate for three-month U.S. dollar deposits determined by the Trustee in the
following order of priority: (i) the rate (expressed as a percentage per annum)
for U.S. dollar deposits having a three-month maturity that appears on Telerate
Page 3750 as of 11:00 a.m. (London time) on the related Determination Date
("Telerate Page 3750" means the display designated as "Page 3750" on the Dow
▇▇▇▇▇ Telerate Service or such other page as may replace Page 3750 on that
service or such other service or services as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
London interbank offered rates for U.S. dollar deposits); (ii) if such rate
cannot be identified on the related Determination Date, the Trustee will request
the principal London offices of four leading banks in the London interbank
market to provide such banks' offered quotations (expressed as percentages per
annum) to prime banks in the London interbank market for U.S. dollar deposits
having a three-month maturity as of 11:00 a.m. (London time) on such
Determination Date. If at least two quotations are provided, 3-Month LIBOR will
be the arithmetic mean of such quotations; (iii) if fewer than two such
quotations are provided as requested in clause (ii) above, the Trustee will
request four major New York City banks to provide such banks' offered quotations
(expressed as percentages per annum) to leading European banks for loans in U.S.
dollars as of 11:00 a.m. (London time) on such Determination Date. If at least
two such quotations are provided, 3-Month LIBOR will be the arithmetic mean of
such quotations; and (iv) if fewer than two such quotations are provided as
requested in clause (iii) above, 3-Month LIBOR will be a 3-Month LIBOR
determined with respect to the Distribution Period immediately preceding such
current Distribution Period. If the rate for U.S. dollar deposits having a
three-month maturity that initially appears on Telerate Page 3750 as of 11:00
a.m. (London time) on the related Determination Date is superseded on the
Telerate Page 3750 by a corrected rate by 12:00 noon (London time) on such
Determination Date, then the corrected rate as so substituted on the applicable
page will be the applicable 3-Month LIBOR for such Determination Date. As used
herein, "Determination Date" means the date that is two London Banking Days
(i.e., a business day in which dealings in deposits in U.S. dollars are
transacted in the London interbank market) preceding the commencement of the
relevant Distribution Period.
The Interest Rate for any Distribution Period will at no time be higher
than the maximum rate then permitted by New York law as the same may be modified
by United States law.
All percentages resulting from any calculations on the Debentures will be
rounded, if necessary, to the nearest one hundred-thousandth of a percentage
point, with five one-millionths of a percentage point rounded upward (e.g.,
9.876545% (or .09876545) being rounded to 9.87655% (or .0987655), and all dollar
amounts used in or resulting from such calculation will be rounded to the
nearest cent (with one-half cent being rounded upward)).
The principal of and interest on this Debenture shall be payable at the
office or agency of the Trustee (or other paying agent appointed by the Company)
maintained for that purpose in any coin or currency of the United States of
America that at the time of payment is legal tender for payment of public and
private debts;
50
provided, however, that payment of interest may be made by check mailed to the
-------- -------
registered holder at such address as shall appear in the Debenture Register if a
request for a wire transfer by such holder has not been received by the Company
or by wire transfer to an account appropriately designated by the holder hereof.
Notwithstanding the foregoing, so long as the holder of this Debenture is the
Institutional Trustee, the payment of the principal of and interest on this
Debenture will be made in immediately available funds at such place and to such
account as may be designated by the Trustee.
So long as no Event of Default has occurred and is continuing, the Company
shall have the right, from time to time, and without causing an Event of
Default, to defer payments of interest on the Debentures by extending the
interest payment period on the Debentures at any time and from time to time
during the term of the Debentures, for up to 20 consecutive quarterly periods
(each such extended interest payment period, an "Extension Period"), during
which Extension Period no interest (including Additional Interest) shall be due
and payable (except any Additional Sums that may be due and payable). No
Extension Period may end on a date other than an Interest Payment Date. During
an Extension Period, interest will continue to accrue on the Debentures, and
interest on such accrued interest will accrue at an annual rate equal to the
Interest Rate in effect for such Extension Period, compounded quarterly from the
date such interest would have been payable were it not for the Extension Period,
to the extent permitted by law (such interest referred to herein as "Additional
Interest"). At the end of any such Extension Period the Company shall pay all
interest then accrued and unpaid on the Debentures (together with Additional
Interest thereon); provided, however, that no Extension Period may extend beyond
-------- -------
the Maturity Date; provided further, however, that during any such Extension
-------- ------- -------
Period, the Company shall not and shall not permit any Affiliate to engage in
any of the activities or transactions described on the reverse side hereof and
in the Indenture. Prior to the termination of any Extension Period, the Company
may further extend such period, provided that such period together with all such
previous and further consecutive extensions thereof shall not exceed 20
consecutive quarterly periods, or extend beyond the Maturity Date. Upon the
termination of any Extension Period and upon the payment of all accrued and
unpaid interest and Additional Interest, the Company may commence a new
Extension Period, subject to the foregoing requirements. No interest or
Additional Interest shall be due and payable during an Extension Period, except
at the end thereof, but each installment of interest that would otherwise have
been due and payable during such Extension Period shall bear Additional
Interest. The Company must give the Trustee notice of its election to begin or
extend an Extension Period at least 5 Business Days prior to the regular record
date (as such term is used in Section 2.8 of the Indenture) immediately
preceding the Interest Payment Date with respect to which interest on the
Debentures would have been payable except for the election to begin or extend
such Extension Period.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this
Debenture, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his or her behalf to take
such action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his or her
attorney-in-fact for any and all such purposes. Each holder hereof, by his or
her acceptance hereof, hereby waives all notice of the acceptance of the
subordination provisions contained herein and in the Indenture by each holder of
Senior Indebtedness, whether now outstanding or hereafter incurred, and waives
reliance by each such holder upon said provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Debenture are continued on the reverse side hereof
and such provisions shall for all purposes have the same effect as though fully
set forth at this place.
51
IN WITNESS WHEREOF, the Company has duly executed this certificate.
COMMUNITY CAPITAL BANCSHARES, INC.
By_________________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Debentures referred to in the within-mentioned Indenture.
U. S. Bank National Association, as Trustee
By_________________________________________
Authorized Officer
52
[FORM OF REVERSE OF DEBENTURE]
This Debenture is one of the floating rate junior subordinated deferrable
interest debentures of the Company, all issued or to be issued under and
pursuant to the Indenture dated as of March 26, 2003 (the "Indenture"), duly
executed and delivered between the Company and the Trustee, to which Indenture
reference is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the Debentures. The Debentures are limited in aggregate
principal amount as specified in the Indenture.
Upon the occurrence and continuation of a Special Event prior to March 26,
2008, the Company shall have the right to redeem the Debentures in whole, but
not in part, at any Interest Payment Date, within 120 days following the
occurrence of such Special Event, at the Special Redemption Price.
In addition, the Company shall have the right to redeem the Debentures, in
whole or in part, but in all cases in a principal amount with integral multiples
of $1,000.00, on any Interest Payment Date on or after March 26, 2008, at the
Redemption Price.
Prior to 10:00 a.m. New York City time on the Redemption Date or Special
Redemption Date, as applicable, the Company will deposit with the Trustee or
with one or more paying agents an amount of money sufficient to redeem on the
Redemption Date or the Special Redemption Date, as applicable, all the
Debentures so called for redemption at the appropriate Redemption Price or
Special Redemption Price.
If all, or less than all, the Debentures are to be redeemed, the Company
will give the Trustee notice not less than 45 nor more than 60 days,
respectively, prior to the Redemption Date or Special Redemption Date, as
applicable, as to the aggregate principal amount of Debentures to be redeemed
and the Trustee shall select, in such manner as in its sole discretion it shall
deem appropriate and fair, the Debentures or portions thereof (in integral
multiples of $1,000.00) to be redeemed.
Notwithstanding the foregoing, any redemption of Debentures by the Company
shall be subject to the receipt of any and all required regulatory approvals.
In case an Event of Default shall have occurred and be continuing, upon
demand of the Trustee, the principal of all of the Debentures shall become due
and payable in the manner, with the effect and subject to the conditions
provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debentures at the time outstanding, to execute
supplemental indentures for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the holders
of the Debentures; provided, however, that no such supplemental indenture shall
-------- -------
without the consent of the holders of each Debenture then outstanding and
affected thereby (i) change the fixed maturity of any Debenture, or reduce the
principal amount thereof or any premium thereon, or reduce the rate or extend
the time of payment of interest thereon, or reduce any amount payable on
redemption thereof or make the principal thereof or any interest or premium
thereon payable in any coin or currency other than that provided in the
Debentures, or impair or affect the right of any
53
Securityholder to institute suit for payment thereof or impair the right of
repayment, if any, at the option of the holder, or (ii) reduce the aforesaid
percentage of Debentures the holders of which are required to consent to any
such supplemental indenture.
The Indenture also contains provisions permitting the holders of a majority
in aggregate principal amount of the Debentures at the time outstanding on
behalf of the holders of all of the Debentures to waive (or modify any
previously granted waiver of) any past default or Event of Default, and its
consequences, except a default (a) in the payment of principal of, premium, if
any, or interest on any of the Debentures, (b) in respect of covenants or
provisions hereof or of the Indenture which cannot be modified or amended
without the consent of the holder of each Debenture affected, or (c) in respect
of the covenants contained in Section 3.9 of the Indenture; provided, however,
-------- -------
that if the Debentures are held by the Trust or a trustee of such trust, such
waiver or modification to such waiver shall not be effective until the holders
of a majority in Liquidation Amount of Trust Securities of the Trust shall have
consented to such waiver or modification to such waiver, provided, further, that
-------- -------
if the consent of the holder of each outstanding Debenture is required, such
waiver shall not be effective until each holder of the Trust Securities of the
Trust shall have consented to such waiver. Upon any such waiver, the default
covered thereby shall be deemed to be cured for all purposes of the Indenture
and the Company, the Trustee and the holders of the Debentures shall be restored
to their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other default or Event of Default or impair
any right consequent thereon. Whenever any default or Event of Default
hereunder shall have been waived as permitted by the Indenture, said default or
Event of Default shall for all purposes of the Debentures and the Indenture be
deemed to have been cured and to be not continuing.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest, including Additional Interest, on this Debenture at the time and place
and at the rate and in the money herein prescribed.
The Company has agreed that if Debentures are initially issued to the Trust
or a trustee of such Trust in connection with the issuance of Trust Securities
by the Trust (regardless of whether Debentures continue to be held by such
Trust) and (i) there shall have occurred and be continuing an Event of Default,
(ii) the Company shall be in default with respect to its payment of any
obligations under the Capital Securities Guarantee, or (iii) the Company shall
have given notice of its election to defer payments of interest on the
Debentures by extending the interest payment period as provided herein and such
Extension Period, or any extension thereof, shall be continuing, then the
Company shall not, and shall not allow any Affiliate of the Company to, (x)
declare or pay any dividends or distributions on, or redeem, purchase, acquire,
or make a liquidation payment with respect to, any of the Company's capital
stock or its Affiliates' capital stock (other than payments of dividends or
distributions to the Company) or make any guarantee payments with respect to the
foregoing or (y) make any payment of principal of or interest or premium, if
any, on or repay, repurchase or redeem any debt securities of the Company or any
Affiliate that rank pari passu in all respects with or junior in interest to the
Debentures (other than, with respect to clauses (x) and (y) above, (1)
repurchases, redemptions or other acquisitions of shares of capital stock of the
Company in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of one or more employees, officers,
directors or consultants, in connection with a dividend reinvestment or
stockholder stock purchase plan or in connection with the issuance of
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capital stock of the Company (or securities convertible into or exercisable for
such capital stock) as consideration in an acquisition transaction entered into
prior to the applicable Extension Period, if any, (2) as a result of any
exchange or conversion of any class or series of the Company's capital stock (or
any capital stock of a subsidiary of the Company) for any class or series of the
Company's capital stock or of any class or series of the Company's indebtedness
for any class or series of the Company's capital stock, (3) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (4) any declaration of a dividend in connection with any
stockholders' rights plan, or the issuance of rights, stock or other property
under any stockholders' rights plan, or the redemption or repurchase of rights
pursuant thereto, (5) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock and any
cash payments in lieu of fractional shares issued in connection therewith, or
(6) payments under the Capital Securities Guarantee).
The Debentures are issuable only in registered, certificated form without
coupons and in minimum denominations of $100,000.00 and any multiple of
$1,000.00 in excess thereof. As provided in the Indenture and subject to the
transfer restrictions and limitations as may be contained herein and therein
from time to time, this Debenture is transferable by the holder hereof on the
Debenture Register of the Company. Upon due presentment for registration of
transfer of any Debenture at the Principal Office of the Trustee or at any
office or agency of the Company maintained for such purpose as provided in
Section 3.2 of the Indenture, the Company shall execute, the Company or the
Trustee shall register and the Trustee or the Authenticating Agent shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Debenture for a like aggregate principal amount. All
Debentures presented for registration of transfer or for exchange or payment
shall (if so required by the Company or the Trustee or the Authenticating Agent)
be duly endorsed by, or be accompanied by a written instrument or instruments of
transfer in form satisfactory to, the Company and the Trustee or the
Authenticating Agent duly executed by the holder or his attorney duly authorized
in writing. No service charge shall be made for any exchange or registration of
transfer of Debentures, but the Company or the Trustee may require payment of a
sum sufficient to cover any tax, fee or other governmental charge that may be
imposed in connection therewith.
Prior to due presentment for registration of transfer of any Debenture, the
Company, the Trustee, any Authenticating Agent, any paying agent, any transfer
agent and any Debenture registrar may deem the Person in whose name such
Debenture shall be registered upon the Debenture Register to be, and may treat
him as, the absolute owner of such Debenture (whether or not such Debenture
shall be overdue) for the purpose of receiving payment of or on account of the
principal of, premium, if any, and interest on such Debenture and for all other
purposes; and neither the Company nor the Trustee nor any Authenticating Agent
nor any paying agent nor any transfer agent nor any Debenture registrar shall be
affected by any notice to the contrary. All such payments so made to any holder
for the time being or upon his order shall be valid, and, to the extent of the
sum or sums so paid, effectual to satisfy and discharge the liability for moneys
payable upon any such Debenture.
No recourse for the payment of the principal of or premium, if any, or
interest on any Debenture, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture or in any
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supplemental indenture, or in any such Debenture, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, employee, officer or director, as such, past, present or future, of
the Company or of any successor Person of the Company, either directly or
through the Company or any successor Person of the Company, whether by virtue of
any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of the Indenture and the issue of the
Debentures.
Capitalized terms used and not defined in this Debenture shall have the
meanings assigned in the Indenture dated as of the date of original issuance of
this Debenture between the Trustee and the Company.
THE INDENTURE AND THE DEBENTURES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES THEREOF.
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